EX-4.7 4 exhibit04x7.htm EXHIBIT 4.7 exhibit04x7
exhibit04x7p1i0
 
 
Exhibit 4.7
CLIFFORD CHANCE LLP
EXECUTION
 
VERSION
AMENDMENT
 
AND RESTATEMEN
 
T
 
AGREEMENT
DATE
 
D
 
16 FEBRUARY 2023
BETWEEN
ABB LTD
CERTAIN
 
SUBSIDIARIES OF ABB LTD
AS ORIGINAL
 
BORROWERS
THE MANDATED LEAD ARRANGERS
THE ORIGINAL LENDERS
CITIBANK
 
EUROPE PLC, UK BRANCH
AS FACILITY AGENT
AND EURO SWINGLINE
 
AGENT
AND
CITIBANK, N.A
AS DOLLAR SWINGLINE AGENT
RELATING TO
 
THE $2,000,000,000
MULTICURRENCY REVOLVING CREDIT
AGREEMENT
DATE
 
D
 
16 DECEMBER
 
2019
10250237317-v15
 
70-41048667
CONTENTS
Clause
 
Page
1.
 
Definitions and Interpretatio
n
...................................................................................
.
1
2.
 
Representations
 
........................................................................................................
.
2
3.
 
Restatement..............................................................................................................
.
2
4.
 
Continuity and Further Assurance.............................................................................
.
2
5.
 
Costs and Expenses ..................................................................................................
.
3
6.
 
Miscellaneous...........................................................................................................
.
3
7.
 
Governing Law.........................................................................................................
.
3
Schedule 1 The Obligors....................................................................................................................
 
4
Schedule 2 Conditions Precedent........................................................................................................
 
5
Schedule 3 Amended and Restated Facility Agreement.....................................................................
 
7
10250237317-v15
- i -
70-41048667
THIS AGREEMENT
is dated 16 February
 
2023 and made between:
(1)
ABB
 
LTD
,
 
a
 
company
 
incorporated
 
in
 
Switzerland
 
whose
 
registered
 
office
 
is
 
at
Affolternstrasse 44, CH-8050 Zurich, Switzerland
 
("
ABB
" or the "
Guarantor
");
(2)
THE
 
SUBSIDIARIES
 
OF
 
AB
B
listed
 
i
n
Schedule
 
1
 
a
s
origina
l
borrowers
 
(the
"
Original Borrowers
");
(3)
THE MANDATED LEAD ARRANGERS
(as defined in the Amended and Restated
Facility Agreement);
(4)
TH
E
ORIGINA
L
LENDER
S
(as
 
defined
 
in
 
th
e
Amended
 
and
 
Restate
d
Facility
Agreement);
(5)
CITIBAN
K
EUROPE
 
PLC,
 
UK
 
BRANC
H
in
 
its
 
capacity
 
as
 
facility
 
agent
 
(the
"
Facility Agent
");
(6)
CITIBANK,
 
N.A
.
in
 
its
 
capacity
 
as
 
dollar
 
swingline
 
agent
 
(the
 
"
Dollar
 
Swingline
Agent
"); and
(7)
CITIBAN
K
EUROPE PLC,
 
UK
 
BRANC
H
in its capacity as
 
euro swingline
 
agent
(the "
Euro
 
Swingline Agent
").
IT IS AGREED
as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"
Amended
 
and
 
Restated
 
Facility
 
Agreement
"
 
means
 
the
 
Original
 
Facility
Agreement, as amended and restated by this Agreement.
"
Effective Date
" means the
 
date on
 
which the
 
Facility Agent
 
confirms to
 
the
 
Original Lenders
and
 
ABB
 
that it
 
has received
 
each of
 
the documents
 
and other
 
evidence listed i
n
Schedule
2
(
Conditions
 
Precedent
)
 
in
 
a
 
form
 
and
 
substance
 
satisfactory
 
to
 
the
 
Facility
 
Agent.
"
Guarantee
 
Obligations
"
 
means
 
the
 
guarantee
 
and
 
indemnity
 
obligations
 
of
 
the
Guarantor contained in the Original
 
Facility Agreement.
"
Original
 
Facility
 
Agreement
"
 
means
 
th
e
$2,000,000,000
 
multicurrency
 
revolving credit
agreement dated
 
16 December 2019 between,
 
among others, ABB, the
 
Original
 
Borrowers,
 
the
Agents,
 
th
e
Mandate
d
Lea
d
Arranger
s
and
 
th
e
Origina
l
Lender
s
as
 
amended
 
and/or
supplemented from time to time
 
prior to the date
 
of this Agreement.
1.2
Incorporation of defined terms
(a)
 
Unless
 
a
 
contrar
y
indication
 
appears,
 
a
 
term
 
defined
 
in
 
the
 
Original
 
Facility
Agreement has the same meaning in this Agreement.
10250237317-v15
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70-41048667
(b)
 
The principles of construction
 
set out in the Original Facility Agreement shall
have effect as if set out in this Agreement.
1.3
Clauses
In
 
this Agreement
 
any reference to
 
a "Clause" or a
 
"Schedule" is,
 
unless the context otherwise
requires, a reference to a Clause in or a
 
Schedule to this Agreement.
1.4
Third party rights
A person who is not a party
 
to this Agreement
 
has no right under
 
the Contracts (Rights
of
 
Third
 
Parties)
 
Act
 
1999
 
to
 
enforce
 
or
 
to
 
enjoy
 
the
 
benefit
 
of
 
any
 
term
 
of
 
this
Agreement.
1.5
Designation
In
 
accordance
 
with
 
the
 
Original
 
Facility
 
Agreement,
 
each
 
o
f
AB
B
and
 
th
e
Facility Agent
designates this Agreement as a Finance Document.
2.
REPRESENTATIONS
Each of the representations set out in clause
 
19.16 (
Repetition
) of the Original Facility
Agreement are deemed to be made by each
 
Obligor (as applicable) (by
 
reference
 
to the facts and
circumstances then existing) on:
(a)
 
the date of this Agreement; and
(b)
 
the Effective Date,
and
 
references to
 
"the
 
Finance
 
Documents" in
 
each
 
of
 
the
 
representations
 
referred
 
to above
should be construed as references
 
to this Agreement and to the Original
 
Facility Agreement
 
and
 
on
 
the Effective
 
Date,
 
to
 
the
 
Amended and
 
Restated Facility
 
Agreement.
3.
RESTATEMENT
 
With effect from the Effective Date the Original Facility
 
Agreement shall be
 
amended
and restated so that it
 
shall be read and
 
construed for all purposes
 
as set out in
 
Schedule
 
3
(
Amended and Restated
 
Facility Agreement
).
4.
CONTINUITY AND FURTHER
 
ASSURANCE
4.1
Continuing obligations
The
 
provisions of the Original Facility
 
Agreement and
 
the
 
other Finance Documents (including
for the
 
avoidance of doubts
 
any Extension Request)
 
shall, save as amended
 
by this
 
Agreement,
continue in full force and effect.
4.2
Confirmation of Guarantee
 
Obligations
For
 
the
 
avoidance
 
of
 
doubt
,
th
e
Guarantor
 
confirms
 
for
 
the
 
benefit
 
of
 
the
 
Finance
Parties
 
that
 
all
 
Guarantee
 
Obligations
 
owed
 
by
 
it
 
under
 
the
 
Amende
d
and
 
Restated
10250237317-v15
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70-41048667
Facility
 
Agreement
 
shall
 
(a) remain
 
in
 
full
 
force
 
and
 
effect
 
notwithstanding
 
the
 
amendments
 
referred
 
to
 
in
 
Clause 3
 
(
Restatement
)
 
and
 
(b)
 
extend
 
to
 
any
 
new
obligations assumed by
 
any Obligor under the Finance Documents as a result
 
of this Agreement
(including,
 
but
 
not
 
limited
 
to,
 
under
 
the
 
Amende
d
and
 
Restate
d
Facility Agreement).
4.3
Further assurance
Each
 
Obligor,
 
shall,
 
at
 
the
 
request
 
of
 
th
e
Facilit
y
Agent
 
and
 
at
 
such
 
Obligor's
 
own
expense,
 
do
 
all
 
such
 
acts
 
and
 
things
 
necessary
 
or
 
desirable
 
to
 
give
 
effect
 
to
 
the
amendments effected or to be effected pursuant to this Agreement.
5.
COSTS AND EXPENSES
5.1
Transaction expenses
AB
B
shall
 
promptly
 
on
 
demand
 
pay
 
th
e
Facility
 
Agen
t
the
 
amount
 
o
f
all
 
costs
 
and expenses
(including legal fees) reasonably and
 
directly incurred by the
 
Facility
 
Agent in
 
connection
 
with
 
the
 
negotiation,
 
preparation,
 
printing
 
and
 
execution
 
of
 
this Agreement
 
and
 
any
 
other
documents referred to in this Agreement.
6.
MISCELLANEOUS
6.1
Incorporation of terms
The
 
provisions
 
of
 
clause
 
31
 
(
Notices
),
 
clause 33
 
(
Partial
 
invalidity
),
 
clause
 
34
(
Remedies
 
an
d
waivers
)
 
and
 
clause 3
9
(
Enforcement
)
 
of
 
th
e
Amended
 
and
 
Restated Facility
Agreement shall be
 
incorporated into this
 
Agreement as
 
if set out in
 
full in this
 
Agreement and
 
as
if
 
references in
 
those clauses to "this Agreement" or
 
"the Finance Documents" are references to
this Agreement.
6.2
Counterparts
This Agreement
 
may be executed in any number
 
of counterparts, and this has
 
the same effect as
if the signatures
 
on the counterparts were
 
on a single copy of this Agreement.
7.
GOVERNING LAW
This
 
Agreement
 
and
 
any
 
non-contractual obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
with it are governed by English law.
This
 
Agreement
 
has
 
been
 
entered
 
into
 
on
 
the
 
date
 
stated
 
at
 
the
 
beginning
 
of
 
this
Agreement.
10250237317-v15
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70-41048667
 
 
 
 
SCHEDULE 1
THE OBLIGORS
Names of Original Borrowers
 
Jurisdiction of incorporation
ABB Finance B.V.
 
Netherlands
ABB Treasury Center (USA),
 
Inc.
 
Delaware, United States
 
of America
Name of Guarantor
 
Jurisdiction of incorporation
ABB Ltd
 
Switzerland
10250237317-v15
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70-41048667
SCHEDULE 2
CONDITIONS
 
PRECEDENT
1.
Corporate Documents
(a)
 
A copy of the constitutional documents of each Obligor (being, in the case of
ABB
 
Finance
 
B.V.
 
,
 
a
 
copy
 
of
 
the
 
articles
 
of
 
association
 
(
statuten
)
 
and
 
deed
 
of
incorporation
 
(
oprichtingsakte
),
 
as
 
well
 
as
 
an
 
extract
 
(
uittreksel
)
 
from
 
the
 
Dutch
Commercial
 
Register
 
(
Handelsregister
))
 
or
 
a
 
certificate
 
of
 
an
 
authorised
signatory of
 
each relevant
 
Obligor certifying
 
that the
 
constitutional documents
 
previously
delivered
 
to
 
the
 
Facility
 
Agent
 
for
 
the
 
purposes
 
of
 
the
 
Original Facility Agreement
have not been amended and remain in full force and
 
effect.
(b)
 
A copy of a resolution of the board of directors of each
 
Obligor (if applicable) or,
 
in
 
the
case
 
of
 
ABB
 
Finance
 
B.V.,
 
a
 
copy
 
of
 
a
 
resolution
 
of
 
the
 
board
 
of
 
managing directors
(
directie
) or,
 
in the case
 
of ABB, a
 
copy of an
 
excerpt of the minutes
 
of,
 
or
 
a
 
circular
resolution of,
 
a meeting
 
of
 
the
 
board
 
of
 
directors of ABB:
(i)
 
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
this
Agreement and the execution of this Agreement;
(ii)
 
authorising a specified person or persons to execute
 
this Agreement on
its behalf;
(iii)
 
(other than
 
in relation
 
to ABB)
 
authorising a
 
specified person
 
or persons,
on
 
its
 
behalf,
 
to
 
sign
 
and/or
 
despatch
 
all
 
documents
 
and
 
notices
 
(including,
if
 
relevant,
 
any
 
Utilisation
 
Requests)
 
to
 
be
 
signed
 
and/or despatched by
 
it
under or in connection with
 
this Agreement; and
(iv)
 
in
 
the
 
case
 
of
 
ABB
 
Finance
 
B.V.,
 
confirming
 
that
 
no
 
works
 
council
(
ondernemingsraad
) or central or European
 
works council (
centrale of
Europese
ondernemingsraad
)
 
has
 
been
 
installed
 
with
 
jurisdiction
 
(and
 
the
 
authority
 
to
render
 
advice)
 
in
 
respect
 
of
 
ABB
 
Finance
 
B.V.
 
and/or
 
the
 
transactions
contemplated by
 
this Agreement,
 
that no
 
action has
 
been
 
taken for the installation
of such works council and no request for such a
 
works
 
council
 
to
 
be
 
installed
has
 
bee
n
made
 
and
 
that
 
such
 
works council is
 
otherwise not
 
required to
 
be
installed pursuant to the Works Council Act (
Wet
 
op de ondernemingsraden
).
(c)
 
A specimen of
 
the signature
 
of each person
 
authorised by
 
the resolution
 
referred
to in paragraph (b) above.
(d)
 
A copy of a good standing certificate (including verification of tax status)
 
with
respect to ABB Treasury Center (USA),
 
Inc., issued as of a
 
recent date by the Secretary
 
of
 
State
 
or
 
other
 
appropriate
 
official
 
of
 
its
 
jurisdiction
 
of
 
incorporation.
(e)
 
A
 
certificate
 
of
 
an
 
authorised
 
signatory
 
of
 
the
 
relevant
 
Obligor
 
certifying
 
without
personal
 
liabilit
y
that
 
each
 
copy
 
documen
t
relating
 
to
 
it
 
specified
 
in
10250237317-v15
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70-41048667
paragraphs 1(a) to 1(d) (as relevant) of this
 
Schedule 2 is correct, complete
 
and in full
force and effect as at a date no earlier than the date of this Agreement.
2.
Legal Opinions
(a)
 
A legal opinion of Clifford Chance LLP, legal advisers to the Mandated Lead Arrangers
and the Agents
 
in England,
 
substantially in
 
the form distributed to the Original Lenders
prior to signing this Agreement.
(b)
 
A
 
legal
 
opinion
 
of
 
Clifford
 
Chance
 
LL
P,
Amsterdam,
 
legal
 
advisers
 
to
 
the
 
Mandated
 
Lead
 
Arranger
 
and
 
the
 
Agents
 
in
 
the
 
Netherlands
 
in
 
the
 
form approved by
 
the
Facility Agent.
(c)
 
A legal opinion of Freshfields Bruckhaus
 
Deringer US LL
P,
United States legal advisers
to
 
ABB
 
Treasury
 
Center
 
(USA),
 
Inc.
 
in
 
the
 
form
 
approved
 
by
 
the
 
Facility Agent.
(d)
 
A legal
 
opinion of
 
Niederer Kraft
 
Frey Ltd,
 
legal advisers
 
to the
 
Mandated Lead
 
Arrangers
and the Agents in Switzerland
 
in the form approved
 
by the Facility Agent.
10250237317-v15
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70-41048667
SCHEDULE 3
AMENDED AND RESTATED
 
FACILITY AGREEMENT
10250237317-v15
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70-41048667
 
 
CLIFFORD CHANCE LLP
EXECUTION
 
VERSION
ABB LTD
CERTAI
 
N
 
SUBSIDIARIES OF ABB
 
LTD AS
BORROWERS
WITH
THE MANDATED LEAD ARRANGERS
WITH
CITIBANK
 
EUROPE PLC, UK
 
BRANCH AS
FACILITY AGENT
AND EURO SWINGLINE AGENT
AND
CITIBANK, N.A
AS DOLLAR SWINGLINE AGENT
$2,000,000,000
MULTICURRENCY REVOLVING CREDIT
AGREEMENT
DATE
 
D
 
16 DECEMBER
 
2019
AS AMENDED AND RESTATED
ON 16 FEBRUARY 2023
10250237000-v15
 
70-41048667
CONTENTS
Clause
 
Page
1.
 
Definitions and Interpretatio
n
...................................................................................
.
 
2
2.
 
The Facilit
y
.............................................................................................................
 
28
3.
 
Purpose....................................................................................................................
 
33
4.
 
Conditions of Utilisation..........................................................................................
 
33
5.
 
Utilisation................................................................................................................
 
35
6.
 
Optional Currencies.................................................................................................
 
37
7.
 
Repayment ..............................................................................................................
 
39
8.
 
Prepayment and Cancellation...................................................................................
 
40
9.
 
Interest ....................................................................................................................
 
46
10.
 
Interest Periods........................................................................................................
 
48
11.
 
Changes to the Calculation of Interest......................................................................
 
48
12.
 
Fees.........................................................................................................................
 
50
13.
 
Tax Gross Up and Indemnities.................................................................................
 
52
14.
 
Increased Costs........................................................................................................
 
58
15.
 
Other Indemnities....................................................................................................
 
61
16.
 
Mitigation by the Lenders........................................................................................
 
62
17.
 
Costs and Expenses .................................................................................................
 
63
18.
 
Guarantee and Indemnity.........................................................................................
 
63
19.
 
Representations
 
.......................................................................................................
 
67
20.
 
Information Undertakings........................................................................................
 
70
21.
 
General Undertakings..............................................................................................
 
73
22.
 
Events of Default.....................................................................................................
 
76
23.
 
Changes to the Lenders............................................................................................
 
80
24.
 
Confidentiality of Funding Rate
s
.............................................................................
 
86
25.
 
Changes to the Obligors...........................................................................................
 
87
26.
 
Role of the Agents and the Mandated Lead Arrangers.............................................
.
 
89
27.
 
Conduct of Business by the Finance Parties.............................................................
 
99
28.
 
Sharing among the Lenders....................................................................................
 
100
29.
 
Payment Mechanics...............................................................................................
 
102
30.
 
Set-Off ..................................................................................................................
 
106
31.
 
Notice
s
..................................................................................................................
 
106
32.
 
Calculation and Certificates...................................................................................
 
109
33.
 
Partial Invalidity....................................................................................................
 
110
34.
 
Remedies and Waivers
 
..........................................................................................
 
110
10250237000-v15
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70-41048667
35.
 
Amendments and Waivers .....................................................................................
 
110
 
36.
 
Bail-in ...................................................................................................................
 
114
 
37.
 
Counterparts..........................................................................................................
 
116
 
38.
 
Governing Law......................................................................................................
 
117
 
39.
 
Enforcement..........................................................................................................
 
117
 
Schedule 1 ........................................................................................................................
 
118
Part I The Original Lenders...............................................................................................
 
118
 
Part II The Dollar Swingline Lenders................................................................................
 
119
 
Part III The Euro Swingline Lenders .................................................................................
 
120
 
Part IV The Original Obligors...........................................................................................
 
121
 
Schedule 2 Conditions Precedent.......................................................................................
 
122
 
Part I Conditions Precedent...............................................................................................
 
122
 
Part II Additional Borrower Conditions Precedent.............................................................
 
124
 
Schedule 3 Utilisation Request..........................................................................................
 
126
 
Schedule 4 Form of Transfer Certificate............................................................................
 
127
 
Schedule 5 Timetables ......................................................................................................
 
129
 
Schedule 6 Form of Borrower Accession Letter ................................................................
 
131
 
Schedule 7 Form of Resignation Letter..............................................................................
 
132
 
Schedule 8 Material Subsidiaries.......................................................................................
 
133
 
Schedule 9 Form of Increase Confirmation........................................................................
 
134
 
Schedule 10 Reference Rate Terms ...................................................................................
 
136
 
Part I A Dollars – Term Rate Advances.............................................................................
 
136
 
Part I B Dollars – Compounded Rate Advances.................................................................
 
140
 
Part II Sterling...................................................................................................................
 
144
 
Part III Swiss Francs .........................................................................................................
 
147
 
Part IV Euro......................................................................................................................
 
151
 
Schedule 11 Daily Non-Cumulative Compounded RFR Rate ...........................................
 
153
 
Schedule 12 Cumulative Compounded RFR Rate..............................................................
 
155
 
10250237000-v15
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70-41048667
THIS
 
AGREEMENT
 
is
 
dated
 
16
 
December
 
2019
 
("
the
 
date
 
of
 
this
 
Agreement
")
,
as
 
amended
and restated
 
pursuant to an
 
amendment and
 
restatement agreement
 
dated 16 February
 
2023 and made
BETWEEN
:
(1)
ABB
 
LTD
,
a
company
 
incorporated
 
in
 
Switzerland
 
whose
 
registered
 
office
 
is
 
at
Affolternstrasse 44, CH-8050 Zurich, Switzerland
 
("
ABB
" or the "
Guarantor
");
(2)
THE SUBSIDIARIES
 
OF ABB
listed in
 
Part IV
 
of Schedule
 
1 (
The Original
 
Obligors
)
as original borrowers (the "
Original Borrowers
");
(3)
CITIGROUP GLOBAL
 
MARKETS LIMITED
,
BANK OF
 
AMERICA EUROPE
DESIGNATED
 
ACTIVITY
 
COMPANY
,
BARCLAYS
 
BANK
 
PLC
,
BNP
PARIBAS
 
(SUISSE)
 
SA
,
CA
 
INDOSUEZ
 
(SWITZERLAND)
 
SA
,
CREDIT
SUISSE
 
(SWITZERLAND)
 
LTD.
,
DEUTSCHE
 
BANK
 
LUXEMBOURG
 
S.A.
,
GOLDMAN
 
SACHS
 
BANK
 
USA
,
HSBC
 
BANK
 
PLC
,
 
ING
 
BANK
 
N.V.,
AMSTERDAM
,
LANCY/GENEVA
 
BRANCH
,
J.P.
 
MORGAN
 
SECURITIES
PLC
,
NORDEA
 
BANK ABP
,
FILIAL I SVERIGE
,
BANCO SANTANDER, S.A.
,
STANDARD
CHARTERED BANK
,
SKANDINAVISKA
 
ENSKILDA BANKEN
AB
 
(PUBL)
,
SOCIÉTÉ
 
GÉNÉRALE
 
S.A.
 
FRANKFURT
 
BRANCH,
 
UBS
SWITZERLAND
 
AG
,
 
UNICREDIT
 
BANK
 
AG
,
CHINA
 
CONSTRUCTION
BANK
 
CORPORATION
,
 
BEIJING
,
SWISS
 
BRANCH
 
ZURICH
 
in
 
their
respective capacities as mandated lead arrangers
 
(the "
Mandated Lead Arrangers
");
(4)
THE
 
FINANCIAL
 
INSTITUTION
S
listed
 
i
n
Part
 
I
 
to
 
Part
 
II
I
o
f
Schedule
 
1 (
The
Original
Lenders
)
 
in
 
their
 
respective
 
capacities
 
as
 
original
 
lenders
 
(the
 
"
Original
Lenders
");
(5)
CITIBAN
K
EUROPE
 
PLC,
 
UK
 
BRANC
H
in
 
its
 
capacity
 
as
 
facility
 
agen
t
(the
"
Facility Agent
");
(6)
CITIBANK,
 
N.A
.
in
 
its
 
capacity
 
as
 
dollar
 
swingline
 
agent
 
(the
 
"
Dollar
 
Swingline
Agent
"); and
(7)
CITIBAN
K
EUROPE PLC,
 
UK
 
BRANC
H
in its capacity as
 
euro swingline
 
agent
(the "
Euro
 
Swingline Agent
").
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IT IS AGREED
as follows:
SECTION
 
1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"
Acquisition
" means the
 
acquisition by any Group Company of
 
any person not already being
 
a
Group
 
Company
 
and
 
which, upon
 
completion of
 
the
 
acquisition,
 
becomes
 
a Group Company.
"
Additional Borrower
" means any wholly
 
owned Subsidiary
 
of ABB that has
 
become
 
an
Additional Borrower in accordance with Clause
 
25.2 (
Additional Borrowers
).
"
Additional
 
Business
 
Day
"
 
means
 
any
 
day
 
specified
 
as
 
such
 
in
 
the
 
applicable
Reference Rate Terms.
"
Advance
" means
 
an advance
 
made or
 
to be
 
made
 
under
 
the Facility
 
(including,
 
unless
 
the
 
context
 
otherwise
 
requires,
 
a
 
Swingline
 
Advance)
 
or
 
the
 
principal
 
amount
 
outstanding for the time
being of that advance.
"
Affiliate
" means, in relation to
 
any person, a Subsidiary of that person or
 
a Holding Company
of that person or any other Subsidiary of
 
that Holding Company.
"
Agents
" means
 
the Dollar
 
Swingline Agent,
 
the Euro
 
Swingline Agent
 
and the
 
Facility Agent,
and "
Agent
" means, as the context may require,
 
any of them.
"
Agreed Jurisdiction
" means
 
any of the
 
United States of America,
 
Switzerland, any country
 
that
is,
 
at
 
the time
 
the
 
notice
 
requesting
 
the
 
additional Borrower
 
is
 
submitted, a
 
member
 
of
 
the
European
 
Union
 
(other
 
than
 
Cyprus,
 
Estonia,
 
Latvia
,
Lithuania, Slovakia and Slovenia) and
any other country approved by all the Lenders.
"
Amendment and Restatement Agreement
" means the amendment and restatement
 
agreement
dated
 
16
 
February
 
2023
 
between,
 
among
 
others,
 
ABB
 
and
 
the
 
Facility
 
Agent.
"
Authorisation
"
 
means
 
an
 
authorisation,
 
consent,
 
approval,
 
resolution,
 
licence,
exemption, filing or registration.
"
Availability
 
Period
"
 
means
 
the
 
period
 
from
 
the
 
date
 
of
 
this
 
Agreement
 
up
 
to
 
and
including the date falling one
 
week before the Termination Date.
"
Available Commitment
" means a Lender's
 
Commitment minus:
 
(a)
 
the
 
Base
 
Currency
 
Amount
 
of
 
its
 
participation
 
in
 
any
 
outstanding
 
Advances
(including any Separate Advances); and
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(b)
 
in
 
relation
 
to
 
any
 
proposed
 
Utilisation,
 
the
 
Base
 
Currency
 
Amount
 
of
 
its
participation
 
in any
 
Advances
 
that are
 
due to
 
be made
 
on or
 
before the
 
proposed
 
Utilisation
Date,
other than, in either case, that Lender's participation
 
in any Advances that
 
are due to
 
be repaid or
prepaid on or before the
 
proposed Utilisation Date.
"
Available
 
Dollar
 
Swingline
 
Commitment
"
 
means
 
a
 
Dollar
 
Swingline
 
Lender's
 
Dollar
Swingline Commitment minus:
(a)
 
the
 
Base
 
Currency
 
Amount
 
of
 
its
 
participation
 
in
 
any
 
outstanding
 
Dollar
Swingline Advances; and
(b)
 
in relation to any proposed Utilisation by way of a
 
Dollar Swingline Advance,
the
 
Base
 
Currency
 
Amount
 
of
 
its
 
participation
 
in
 
any
 
Dollar
 
Swingline
Advances that are due to be made on or
 
before the proposed
 
Utilisation Date,
other
 
than, in
 
either case,
 
that Dollar
 
Swingline
 
Lender's participation
 
in any
 
Dollar
 
Swingline
Advances
 
that
 
are
 
due
 
to
 
be
 
repaid
 
or
 
prepaid
 
on
 
or
 
before
 
the
 
proposed
 
Utilisation Date.
"
Available Dollar Swingline
 
Facility
" means the aggregate
 
for the time being
 
of each
 
Dollar
Swingline Lender's Available Dollar Swingline Commitment.
"
Available
 
Euro
 
Swinglin
e
Commitment
"
 
means a
 
Euro
 
Swingline
 
Lender's
 
Euro
Swingline Commitment minus:
(a)
 
the
 
Base
 
Currency
 
Amount
 
of
 
its
 
participation
 
in
 
any
 
outstanding
 
Euro
Swingline Advances; and
(b)
 
in
 
relation
 
to any proposed Utilisation by way of a
 
Euro Swingline
 
Advance,
the Base
 
Currency Amount
 
of its participation
 
in any Euro
 
Swingline Advances
 
that are
due to be made on or before
 
the proposed Utilisation Date,
other
 
than,
 
in
 
either
 
case,
 
that
 
Euro
 
Swingline
 
Lender's
 
participation
 
in
 
any
 
Euro
 
Swingline
Advances
 
that
 
are
 
due
 
to
 
b
e
repaid
 
or
 
prepaid
 
on
 
or
 
before
 
the
 
proposed
 
Utilisation Date.
"
Available Euro Swingline
 
Facility
" means the aggregate for the time
 
being of each Euro
Swingline Lender's Available Euro Swingline Commitment.
"
Available Facility
" means
 
the aggregate for
 
the time
 
being of
 
each Lender's
 
Available
Commitment.
"
Base Currency
" means Dollars.
"
Base
 
Currency
 
Amount
"
 
means,
 
in
 
relation
 
to
 
an
 
Advance,
 
the
 
amount
 
specified
 
in
 
the
Utilisation
 
Request
 
delivered
 
by
 
the
 
relevant
 
Borrower
 
for
 
that
 
Advance
 
(or,
 
if
 
the
 
amount
requested is not denominated
 
in the Base
 
Currency, that amount
 
converted
 
into the Base
 
Currency
at the Facility
 
Agent's Spot Rate
 
of Exchange on
 
the date which
 
is 3 Business
 
Days
 
before
 
the
Utilisation Date
 
or,
 
if
 
later,
 
on
 
the
 
date
 
the
 
Facility
 
Agent
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receives the
 
Utilisation Request)
 
adjusted to reflect any
 
repayment or
 
prepayment of the
Advance.
"
Baseline CAS
" means, in relation to a Compounded
 
Rate Advance in a Compounded
 
Rate
Currency, any rate which is either:
(a)
 
specified as such in the applicable Reference Rate
 
Terms; or
(b)
 
determined by the relevant Agent (acting on the instructions
 
of all the Lenders)
(or by any
 
other Finance Party
 
which agrees
 
to determine that
 
rate in place
 
of tha
t
Agent)
in
 
accordance
 
with
 
the methodology
 
specified in
 
the
 
applicable
 
Reference Rate
 
Terms.
"
Basic
 
€STR
"
 
means,
 
in
 
relation
 
to
 
any
 
da
y
during
 
an
 
Interest
 
Period
 
for
 
a
 
Euro
 
Swingline
Advance, €STR
 
for the
 
first day
 
of that
 
Interest
 
Period and
 
if that rate
 
is less
 
than zero,
 
Basic €STR
shall be deemed to be zero.
"
Borrower
 
Accession
 
Letter
"
 
means
 
a
 
letter
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
Schedule 6 (
Form of Borrower Accession Letter
).
"
Borrowers
" means each
 
Original Borrower
 
and each
 
Additional Borrower,
provided
that
it has
not been released from its rights
 
and obligations under this Agreement
 
in
 
accordance
 
with Clause
25.3 (
Resignation of a Borrower
).
"
Break Costs
" means the
 
amount (if any)
 
specified as such in the
 
applicable
 
Reference
 
Rate
Terms.
"
Business Day
" means:
(a)
 
in
 
relation
 
to
 
a
 
Dollar
 
Swingline
 
Advance
 
a
 
day
 
(other
 
than
 
a
 
Saturday
 
or
 
a
Sunday) on which banks
 
are open for general business
 
in New York;
(b)
 
in relation to any
 
Advance
 
(not being a Dollar
 
Swingline Advance) a day (other
than
 
a
 
Saturday
 
or
 
Sunday)
 
on
 
which
 
banks
 
are open
 
for
 
general
 
business
 
in London,
and:
(i)
 
(in relation to any date
 
for payment or purchase of
 
a currency
 
other than
Euro) the principal financial centre of the country
 
of that currency;
(ii)
 
(in relation to any date for payment or purchase
 
of Euro) any TARGET
Day; or
(iii)
 
(in relation to:
(A)
 
the
 
fixing
 
of
 
an
 
interest
 
rate
 
in
 
relation
 
to
 
a
 
Term
 
Rate
 
Advance;
 
(B)
 
any
 
date
 
for
 
payment
 
or
 
purchase
 
of
 
an
 
amount
 
relating
 
to
 
a
Compounded Rate Advance; or
 
(C)
 
the
 
determination of
 
the
 
first day or
 
the last day
 
of
 
an Interest
Period for
 
a Compounded
 
Rate
 
Advance, or
 
otherwise in
 
relation to the
determination
 
of the length of such an Interest Period),
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which is
 
an Additional
 
Business Day
 
relating to that
 
Advance
 
or Unpaid
 
Sum;
and
(c)
 
for all
 
other purposes, a day
 
(other than a Saturday or Sunday)
 
on which banks
are open for general business in London.
"
Capital Markets Issuer
" means a Group Company whose
 
primary functions within
the
 
Group
 
are:
 
(i)
 
the
 
issuance
 
of
 
bonds,
 
commercial
 
paper
 
and/or
 
other
 
debt
 
instruments;
and/or (ii)
 
supporting the
 
intra-Group funding
 
arrangements and
 
treasury operations
 
of the
 
Group.
"
Central Bank Rate
" has the meaning given to that
 
term in the applicable Reference Rate
Terms.
"
Central Bank Rate
 
Adjustment
" has
 
the meaning
 
given to
 
that term
 
in the
 
applicable
Reference Rate Terms.
"
Clean-Up Period
" means, in
 
relation to
 
an Acquisition,
 
the
 
period commencing
 
on
 
the date
such Acquisition
 
completes
 
and ending on the date falling 180 days later.
"
Code
" means the US Internal Revenue
 
Code of 1986.
"
Commitment
" means:
(a)
 
in relation to an Original Lender, the amount in the
 
Base Currency set
 
opposite
its
 
name
 
under
 
the
 
heading
 
"
Commitment
"
 
i
n
Part
I
o
f
Schedule
 
1
(
The
Original
Lenders
)
 
and
 
the
 
amount
 
of
 
any
 
other
 
Commitment
 
transferred
 
to
 
it
 
under
 
this
Agreement or assumed
 
by it in
 
accordance with Clause 2.2
 
(
Increase
of Commitments
);
and
(b)
 
in relation to
 
any other
 
Lender, the amount
 
of any
 
Commitment transferred
 
to it
 
under this
Agreement or assumed by
 
it in accordance with
 
Clause 2.2 (
Increase
of Commitments
),
to the extent not cancelled, reduced or transferred by
 
it under this Agreement.
"
Compounded Rate Advance
" means any Advance
 
(not being a Swingline
 
Advance) or, if
applicable, Unpaid Sum which is not a Term Rate Advance.
"
Compounded
 
Rate
 
Currency
"
 
means
 
any
 
currency
 
which
 
is
 
not
 
a
 
Term
 
Rate
Currency.
"
Compounded Rate Interest Payment
" means the aggregate amount of interest
 
that:
 
(a)
 
is, or is scheduled to become, payable under any
 
Finance
 
Document; and
(b)
 
relates to a Compounded Rate Advance.
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"
Compounded
 
Reference
 
Rate
" means, in relation
 
to any RFR Banking
 
Day during the Interest
Period
 
of
a
Compounded
 
Rate
 
Advance,
 
the
 
percentage rat
e
per
 
annum
 
which is the aggregate
of:
(a)
 
the Daily Non-Cumulative Compounded
 
RFR Rate for that RFR Banking Day;
and
(b)
 
the applicable
 
Baseline CAS or Fallback CAS (if any).
"
Compounding
 
Methodology
 
Supplement
"
 
means, in
 
relation
 
to
 
the
 
Daily
 
Non-
 
Cumulative
Compounded
 
RFR
 
Rat
e
or
 
the
 
Cumulative
 
Compounded
 
RFR
 
Rate,
 
a
 
document which:
(a)
 
is agreed in writing by ABB, each Agent
 
(in its own capacity) and each Agent
(acting on the instructions of the Majority Lenders);
(b)
 
specifies a calculation methodology for
 
that rate; and
(c)
 
has been made available to ABB and each Finance Party.
"
Cumulative
 
Compounded
 
RFR
 
Rate
"
 
means,
 
in
 
relation
 
to
 
an
 
Interest
 
Period
 
for
 
a
Compounded Rate Advance,
 
the percentage rate per annum determined
 
by the relevant
 
Agent (or
by
 
any
 
other
 
Finance
 
Party
 
which
 
agrees
 
to
 
determine
 
that
 
rate
 
in
 
place
 
of
 
tha
t
Agent)
 
in
accordance
 
with
 
the methodology set out
 
i
n
Schedule
 
1
2
(
Cumulative
Compounded RFR Rate
)
or in any relevant Compounding Methodology
 
Supplement.
"
Daily
 
Non-Cumulative
 
Compounded
 
RFR
 
Rate
"
 
means,
 
in
 
relation
 
to
 
any
 
RFR Banking
 
Day
 
during
 
an
 
Interest
 
Period
 
for
 
a
 
Compounded
 
Rate
 
Advance,
 
the
percentage rate per
 
annum determined
 
by the
 
relevant Agent
 
(or by
 
any other
 
Finance
 
Party which
agrees to determine
 
that rate in
 
place of
 
that Agent) in
 
accordance
 
with the
 
methodology set out
 
in
Schedule
 
11
 
(
Daily
 
Non-Cumulative Compounded RFR
 
Rate
) or in
 
any relevant
 
Compounding
Methodology Supplement.
"
Daily Rate
" means the rate
 
specified as such in the
 
applicable Reference Rate Terms.
 
"
Default
"
means an
 
Event of
 
Default
 
or any
 
event or
 
circumstance
 
specified
 
in Clause
 
2
2
(
Events of Default
)
which
 
(with
 
the
 
expiry
 
of a
 
grace
 
period
 
or
 
the
 
giving
 
of
 
any notice specified
 
in Clause
 
22
(
Events of Default
)) would be an Event of Default.
"
Defaulting Lender
" means any Lender:
(a)
 
which has
 
failed to
 
make its
 
participation in
 
an Advance
 
available or
 
has notified
the Facility
 
Agent that it
 
will not
 
make its
 
participation in an
 
Advance available by the
Utilisation Date of
 
that Advance in
 
accordance with Clause
 
5.4 (
Lenders'
participation
);
(b)
 
which has otherwise rescinded or repudiated a Finance
 
Document; or
(c)
 
with respect to which
 
an Insolvency Event has occurred and is continuing, unless,
 
in the
case of paragraph (a) above:
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(i)
 
its failure to pay is caused by:
(A)
 
administrative or technical error; or
(B)
 
a Disruption Event,
and payment is made within 3 Business Days of its due
 
date; or
(ii)
 
the Lender is disputing in
 
good
 
faith whether
 
it is contractually
 
obliged
to make the payment in question.
"
Disruption Event
" means either or both of:
(a)
 
a material disruption
 
to those payment or communications
 
systems or to those
financial
 
markets
 
which
 
are,
 
in
 
each
 
case,
 
required
 
to
 
operate
 
in
 
order
 
for
 
payments
to
 
be made
 
in
 
connection with
 
the
 
Facility
 
(or
 
otherwise in
 
order for
 
the
 
transactions
contemplated
 
by
 
the
 
Finance
 
Documents
 
to
 
be
 
carried
 
out) which
 
disruption
 
is
 
not
caused
 
by,
 
and
 
is
 
beyond
 
the
 
control
 
of,
 
any
 
of
 
the
 
Parties; or
(b)
 
the occurrence of
 
any other
 
event which results
 
in a disruption
 
(of a technical
 
or
 
systems-
related
 
nature)
 
to
 
the
 
treasury
 
or
 
payments
 
operations
 
of
 
a
 
Party preventing that, or
any other Party:
 
(i)
 
from performing its
 
payment obligations
 
under
 
the Finance Documents;
or
 
(ii)
 
from communicating with
 
other Parties in accordance
 
with the terms of
the Finance Documents,
 
and which (in either such case) is not caused by, and is beyond the control of,
the Party whose operations are disrupted.
"
Dollar Swingline Advance
" means any advance
 
made or to be
 
made under the Dollar
Swingline
 
Facility
 
pursuant to
 
a Utilisation
 
Request under
 
Claus
e
5.
5
(
Delivery
 
of
 
a
Utilisation Request for a Swingline
 
Advance
).
"
Dollar Swingline Commitmen
t" means:
(a)
 
in
 
relation
 
to
 
an
 
Original
 
Lender
 
which
 
is
 
a
 
Dolla
r
Swingline
 
Lender,
 
the
amount
 
set
 
opposite
 
its
 
name
 
under
 
the
 
heading
 
"
Dollar
 
Swingline
Commitment
" in Part II of Schedule
 
1 (
The Dollar Swingline Lenders
) and the amount
of
 
any
 
other Dollar
 
Swingline Commitment
 
transferred to
 
it
 
under this
 
Agreement
 
or
 
assumed
 
by
 
it
 
in
 
accordance
 
with
 
Clause
 
2.2
 
(
Increase
 
of
Commitments
); and
(b)
 
in
 
relation
 
to
 
any
 
other Dollar
 
Swingline Lender,
 
the
 
amount
 
of
 
any
 
Dollar
 
Swingline
Commitment transferred to it under this Agreement or assumed by it in accordance with
Clause 2.2 (
Increase of Commitments
),
to the extent not cancelled, reduced or transferred by
 
it under this Agreement.
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"
Dollar
 
Swingline
 
Facility
"
 
means
 
the
 
dollar
 
swingline
 
facility
 
forming
 
part
 
of
 
the
 
Facility
as described in paragraph (a) of Clause
 
2.1
 
(
The Facility
).
"
Dollar Swingline Lender
" means:
(a)
 
any Original
 
Lender whose name is set out in Part
 
II of Schedule 1 (
The Dollar
Swingline Lenders
); and
(b)
 
any bank which has become
 
a Party as a
 
Lender in accordance with Clause 2.2
(
Increase of Commitments
) or Clause
 
23 (
Changes to the
 
Lenders
) and to whom
 
a
 
Dollar
Swingline
 
Commitment
 
has
 
been
 
transferred
 
or
 
by
 
whom
 
a
 
Dollar
 
Swingline
Commitment has been assumed,
which in each case has not ceased
 
to have a Dollar Swingline Commitment.
"
Dollar Swingline Rate
" means, at any time,
 
the higher of:
(a)
 
the Prime
 
Rate; and
(b)
 
the Federal Funds Effective Rate plus 0.50 per
 
cent. per annum.
"
Dutch Borrower
" means ABB Finance B.V.
 
and any Additional Borrower which
 
is
incorporated or established in The
 
Netherlands.
"
Economic
 
Sanctions
 
Laws
"
 
means
 
economic
 
or
 
trade
 
sanctions
 
laws
 
and
 
regulations
 
as
announced
 
and
 
adopted
 
by the
 
Sanctions
 
Authorities (including,
 
but
 
not
 
limited
 
to,
 
the
 
Iran
 
Sanctions
 
Act,
 
as
 
amended
 
by
 
the
 
Comprehensive
 
Iran
 
Sanctions,
 
Accountability
 
and
Divestment Act of 2010, and by
 
any further
 
amendments thereto (the Iran Sanctions Act)).
"
Environmental
 
Law
"
 
means
 
any
 
applicable
 
law
 
in
 
any
 
jurisdiction
 
in
 
whic
h
any Group
Company conducts
 
business which
 
relates to
 
the pollution
 
or protection
 
of
 
the environment
 
or
harm to or the protection
 
of human health
 
or the health
 
of animals or plants.
"
ERISA
" means the Employee Retirement Income Security Act of 1974 of the United
 
States of
America and the regulations promulgated
 
and the rulings issued thereunder.
"
€STR
" means, in relation to any day the
 
applicable Screen Rate for that day.
"
EURIBOR
" means,
 
in relation
 
to any
 
Advance
 
(other
 
than a
 
Euro
 
Swingline Advance)
in Euro, the Primary Term Rate specified in the Reference
 
Rate Terms for Euro.
"
Euro Swingline Advance
" means any
 
advance
 
made or to be
 
made under the Euro
 
Swingline
Facility
 
pursuant
 
to
 
a
 
Utilisation
 
Request
 
under
 
Claus
e
5.
5
(
Delivery
 
of
 
a
Utilisation Request
for a Swingline Advance
).
"
Euro Swingline Commitment
" means:
(a)
 
in relation to an Original Lender
 
which is a
 
Euro Swingline Lender, the amount
(in
 
the
 
Base
 
Currency)
 
set
 
opposite
 
its
 
name
 
under
 
the
 
heading
 
"
Euro
 
Swingline
Commitment
" in Part III of Schedule 1 (
The Euro Swingline
 
Lenders
) and the
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amount of any other Euro Swingline Commitment transferred to
 
it under
 
this
 
Agreement
 
or
 
assumed
 
by
 
it
 
in
 
accordance
 
with
 
Clause
 
2.2
 
(
Increase
 
of
Commitments
); and
(b)
 
in
 
relation
 
to
 
any
 
other
 
Euro
 
Swingline
 
Lender,
 
the
 
amount
 
of
 
any
 
Euro
 
Swingline
Commitment transferred to it under this Agreement or assumed by it in accordance with
Clause 2.2 (
Increase of Commitments
),
to the extent not cancelled, reduced or transferred by
 
it under this Agreement.
"
Euro
 
Swingline
 
Facility
"
means
 
the
 
euro
 
swingline
 
facility
 
forming
 
part
 
of
 
the
 
Facility
as described in paragraph (b) of Clause 2.1
 
(
The Facility
).
"
Euro Swingline Lender
" means:
(a)
 
any Original Lender whose
 
name is set out in Part III of Schedule 1 (
The Euro
Swingline Lenders
); and
(b)
 
any bank which has become Party as a Lender in accordance with Clause
 
2.2
(
Increase of Commitments
) or Clause 23 (
Changes to the Lenders
) and to whom a
 
Euro
 
Swingline
 
Commitment
 
has
 
been
 
transferred
 
or
 
by
 
whom
 
a
 
Euro Swingline
Commitment has been assumed,
which in each case has not ceased
 
to have a Euro Swingline Commitment.
"
Euro Swingline Rate
" means the percentage rate per annum which is the aggregate
 
of:
(a)
 
the Margin; and
(b)
 
Basic €STR.
"
Event of
 
Default
" means
 
any event
 
or circumstance specified
 
as such in
 
Claus
e
22 (
Events
of Default
).
"
Existing
 
Credit
 
Facility
"
 
means
 
the
 
US$2,000,000,000
 
multicurrency
 
revolving credit
facility made
 
available pursuant
 
to a
 
multicurrency revolving
 
facility
 
agreement dated
 
23 May
2014, as amended on 13 June 2014 and as amended
 
and restated from time to time.
"
Existing Lender
" has
 
the meaning given
 
to that term
 
in Clause 23.1
 
(
Assignments
 
and
transfers
by the Lenders
).
"
Extension Request
" means
 
a First
 
Extension Request
 
or a
 
Second Extension
 
Request.
 
"
Facility
"
means
 
the loan
 
facility
 
made
 
available
 
under
 
this
 
Agreement
 
as
 
described in
 
Clause 2.1
 
(
The
Facility
) incorporating a dollar
 
swingline facility
 
and
 
a euro swingline
 
facility.
"
Facility Agent's Spot Rate of Exchange
" means:
(a)
 
the Facility Agent's spot rate of exchange; or
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(b)
 
(if the Facilit
y
Agent does not
 
have an
 
available spot rate
 
of exchange) any
 
other publicly
available spot rate of exchange
 
selected by the
 
Facility
 
Agent (acting reasonably
 
and in
consultation with
 
ABB),
for the purchase of the
 
relevant currency with the Base
 
Currency in the London foreign
exchange market at or about 11:00 a.m. on a particular
 
day.
"
Facility Office
" means
 
the office
 
or
 
offices notified
 
by a
 
Lender to
 
the Facility
 
Agent
 
on or
 
before
the date it becomes a Lender (or,
 
following that date, by not less than 5
 
Business
 
Days'
 
notice)
as
 
the
 
office
 
or
 
offices
 
through
 
which
 
it
 
will
 
perform
 
its
 
obligations under this Agreement.
"
Fallback CAS
" means, in relation to
 
an
y
Advanc
e
in
 
a Term
 
Rate Currency which becomes a
"Compounded Rate
 
Advance" for
 
its then
 
current Interest
 
Period pursuant
 
to a
 
Reference Rate
Supplement, any rate which is either:
(a)
 
specified as such in the applicable Reference Rate
 
Terms; or
(b)
 
determined by the relevant Agent (acting on the instructions
 
of all the Lenders)
(or by any
 
other Finance Party
 
which agrees
 
to determine that
 
rate in place
 
of tha
t
Agent)
in
 
accordance
 
with
 
the methodology
 
specified
 
in
 
the
 
applicable
 
Reference Rate
 
Terms.
"
Fallbac
k
Interes
t
Period
"
 
means,
 
in
 
relation
 
to
a
Term
 
Rate
 
Advance,
 
the
 
period specified
as such in the applicable Reference Rate Terms.
"
FATCA
" means:
(a)
 
sections 1471 to 1474 of the Code or any associated regulations;
(b)
 
any
 
treaty,
 
law
 
or
 
regulation
 
of
 
any
 
other
 
jurisdiction,
 
or
 
relating
 
to
 
an
intergovernmental agreement between
 
the US and
 
any other jurisdiction,
 
which (in
 
either
case) facilitates the implementation of any law or regulation referred to in
 
paragraph (a)
above; or
(c)
 
any agreement pursuant
 
to the implementation of
 
any treaty, law or regulation referred
 
to
in paragraphs
 
(a) or
 
(b) above
 
with the
 
US Internal Revenue
 
Service, the US
 
government
or
 
any
 
governmental
 
or
 
taxation
 
authority
 
in
 
any
 
other
 
jurisdiction.
"
FATCA
 
Application Date
" means:
(a)
 
in
 
relation to a
 
"withholdabl
e
payment" described in section
 
1473(1)(A)(i)
 
of
the Code
 
(which relates
 
to payments of
 
interest and
 
certain other payments
 
from sources
within the US), 1 July 2014; or
(b)
 
in relation to
 
a "passthru
 
payment" described
 
in section
 
1471(d)(7) of
 
the Code
 
not falling
within paragraph
 
(a) above, the first date from which
 
such payment may become subject
to a deduction
 
or withholding required by FATCA.
"
FATCA
 
Deduction
"
 
means
 
a
 
deduction
 
or
 
withholding
 
from
 
a
 
payment
 
under
 
a Finance
Document required by FATCA.
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"
FATCA
 
Exempt Party
" means a Party that is entitled to receive payments free from any
FATCA
 
Deduction.
"
Federal
 
Funds
 
Effective
 
Rate
"
means
,
in
 
relation
 
to
 
any
 
day,
 
the
 
rate
 
per
 
annum
 
equal to
(a)
 
the weighted average of the rates on overnight Federal funds transactions with members
of the
 
US Federal Reserve
 
System arranged
 
by Federal
 
funds brokers, as published
 
for
that day (or, if that day is not
 
a New York
 
Business Day, for the
 
immediately
 
preceding
New
 
York
 
Business Day)
 
by
 
the
 
Federal
 
Reserve
 
Bank of New York; or
(b)
 
if a rate is not so published for any day
 
which is a New York
 
Business Day, the average
of
 
the
 
quotations
 
for
 
that
 
day
 
on
 
such
 
transactions
 
received
 
by
 
the Dollar
 
Swingline
 
Agent from
 
three
 
Federal
 
funds
 
brokers
 
of
 
recognised
 
standing selected
 
by the
 
Dollar
Swingline Agent,
and if that rate is less than zero, Federal Funds Effective
 
Rate shall be deemed to be
zero.
"
Fee Letter
" means:
(a)
 
the fees letter dated on or around the date of this Agreement
 
from the Original
Lenders to ABB,
 
the fees letter
 
dated on or
 
around the date
 
of this Agreement from the
Mandated Lead Arrangers
 
to ABB, the agency fees letter
 
dated on or
 
around
 
the
 
date
 
of
this
 
Agreement
 
from
 
the
 
Facility
 
Agent
 
to
 
ABB
 
and
 
the
 
swingline agency
 
fees letters
dated on or around the date of this Agreement from the Dollar Swingline
 
Agent and the
Euro Swingline
 
Agent respectively to ABB setting out
 
the fees referred
 
to in
 
Clause 12
(
Fees
); and
(b)
 
any other
 
agreement setting
 
out fees
 
payable to
 
a Lender
 
referred to
 
in paragraph
(f) of Clause 2.2 (
Increase of Commitments
).
"
Finance
 
Document
"
 
means
 
this
 
Agreement,
 
the
 
Amendment
 
and
 
Restatement
Agreement
,
any
 
Fee
 
Letter
,
any
 
Extension
 
Request
,
any
 
Borrower
 
Accession
 
Letter,
 
any
 
Resignation
 
Letter,
 
any
 
Reference
 
Rate
 
Supplement,
 
any
 
Compounding
Methodology Supplement
 
and any other
 
document designated as such in
 
writing by the Facility
Agent and ABB.
"
Finance
 
Party
"
 
means
 
any
 
of
 
the
 
Agents,
 
th
e
Mandated
 
Lead
 
Arrangers
 
and
 
the Lenders.
"
First
 
Extension
 
Request
"
 
has
 
the
 
meaning
 
given
 
to
 
it
 
in
 
Claus
e
2.
3
(
Extension
Option
).
"
Funding Rate
" means any rate notified by a Lender
 
to the Facility Agent pursuant
 
to
paragraph (a)(ii)
 
of Clause 11.1 (
Market
 
disruption
).
"
GAAP
"
 
means,
 
in
 
relation
 
to
 
a
 
company,
 
generally
 
accepted
 
accounting
 
principles
 
in
 
its
 
jurisdiction
 
of
 
incorporation,
 
US
 
GAAP
 
or
 
IFRS,
 
as
 
applied
 
by
 
ABB
 
in
 
its
 
consolidated
financial statements.
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"
Group
" means ABB and its Subsidiaries and "
Group Company
" means any one of them.
"
Historic Primary Te
 
rm Rate
" means, in relation to any Term
 
Rate
 
Advance made in Dollars,
the most recent
 
applicable Primary Term
 
Rate for a period
 
equal in length to the Interest Period
of that Advance
 
and which is as of a day which is no more
 
than three Additional Business Days
before the Quotation Day.
"
Holding
 
Company
"
 
means,
 
in
 
relation
 
to
 
a
 
company
 
or
 
corporation,
 
any
 
other company
or corporation in respect of
 
which it is a Subsidiary.
"
IFRS
"
 
means
 
international
 
accounting
 
standards
 
as
 
issued
 
by
 
the
 
International
Accounting Standards Board.
"
Impaired Agent
" means an Agent at any time when:
(a)
 
it has failed to make (or has notified a Party that it will not make) a payment
required
 
to
 
be made
 
by
 
it
 
under
 
the
 
Finance
 
Documents
 
by
 
the
 
due
 
date
 
for
payment;
(b)
 
it otherwise rescinds or repudiates a Finance
 
Document;
(c)
 
(if it is also a Lender)
 
it is a Defaulting Lender under
 
paragraph (a) or (b)
 
of the
definition of "Defaulting Lender"; or
(d)
 
an Insolvency Event has occurred and is continuing
 
with respect to it;
unless, in the case of paragraph
 
(a) above:
(i)
 
its failure to pay is caused by:
(A)
 
administrative or technical error; or
(B)
 
a Disruption Event; and
 
payment is made within 3 Business
 
Days of its due
 
date; or
(ii)
 
the relevant Agent is disputing in good faith whether it is contractually
obliged to make the payment in question.
"
Increase
 
Confirmation
"
 
means
 
a
 
confirmation substantially
 
in
 
the
 
form
 
set
 
out
 
in
Schedule 9 (
Form of Increase Confirmation
).
"
Increase
 
Lender
"
 
has
 
th
e
meaning
 
given
 
to
 
that
 
term
 
in
 
Clause 2.
2
(
Increase
 
of
Commitments
).
"
Indebtedness
"
 
means,
 
in
 
relation
 
to
 
a
 
person,
 
its
 
obligations
 
(whether
 
present
 
or future,
actual
 
or
 
contingent,
 
as
 
principal
 
or
 
surety)
 
for
 
the
 
payment
 
or
 
repayment
 
of
 
money (whether
in respect of interest, principal or otherwise)
 
incurred in respect of:
(a)
 
moneys borrowed;
(b)
 
any bond, note, loan stock, debenture or similar
 
instrument;
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(c)
 
any acceptance credit,
 
bill discounting, note
 
purchase, factoring
 
or documentary
credit facility
 
(or dematerialised equivalent);
(d)
 
any lease required under GAAP as at the date hereof to be treated
 
as a finance
lease;
(e)
 
receivables sold or
 
discounted (other than
 
any receivables
 
to the extent
 
that they
are sold on a non-recourse basis);
(f)
 
any guarantee, bond, stand-by letter
 
of credit or other similar
 
instrument issued
in connection with the performance
 
of payment obligations;
(g)
 
any interest
 
rate or
 
currency swap
 
agreement or
 
any other
 
hedging or
 
derivatives
instrument
 
or
 
agreement
 
(and,
 
when
 
calculating
 
the
 
value
 
of
 
such
 
agreement(s)
 
or
instrument(s), only
 
the marked
 
to
 
market value
 
(or,
 
if any
 
actual
 
amount
 
is due
 
as
 
a
 
result
 
of
 
the
 
termination
 
or
 
close-out
 
of
 
such
 
agreement(s)
 
or instrument(s), that
amount) shall be taken into account);
(h)
 
any arrangement entered
 
into primarily as a method
 
of raising finance pursuant
 
to
 
which
any
 
asset
 
sold
 
or otherwise
 
disposed
 
of
 
by
 
that
 
person
 
is
 
or
 
may
 
be leased to
 
or
 
re-
acquired by
 
a Group
 
Company (whether
 
following the
 
exercise
 
of an
 
option or
 
otherwise);
or
(i)
 
any
 
guarantee,
 
indemnity
 
or
 
similar
 
insurance
 
against
 
financial
 
loss
 
given
 
in respect
of the obligation of any
 
person falling within any of paragraphs (a) to (h) above.
"
Information Package
" means
 
the documents
 
concerning
 
the Group
 
prepared by
 
ABB
 
in relation
to
 
the
 
Facility
 
and
 
posted
 
on
 
the
 
Debtdomain site
 
titled
 
"ABB
 
Lt
d
–
 
Dec 2019"
 
up
 
to
 
and
including the date
 
of this Agreement.
"
Insolvency Event
" in relation to a Finance Party means
 
that the Finance Party:
(a)
 
is dissolved (other than pursuant to a
 
consolidation, amalgamation or merger); (b)
 
is insolvent and under an insolvency, bankruptcy or governmental
 
proceeding
or process:
(i)
 
that
 
is
 
not
 
directly
 
or
 
indirectly
 
undertaken
 
for
 
the
 
purpose
 
of
restructuring,
 
consolidating,
 
amalgamating,
 
merging,
 
rehabilitating
 
or
reorganising
 
that
 
Finance
 
Party
 
to
 
enable
 
that
 
Finance
 
Party
 
to
 
continue
 
its
business; and
(ii)
 
that is
 
not dismissed,
 
discharged, stayed
 
or restrained
 
in each
 
case within
30 days of its institution or presentation;
(c)
 
(except where such action
 
is directly or
 
indirectly undertaken for
 
the purpose of
restructuring,
 
consolidating,
 
amalgamating,
 
merging,
 
rehabilitating
 
or
reorganising
 
that
 
Finance
 
Party
 
to
 
enable it
 
to
 
continue
 
its
 
business)
 
institutes
 
or
 
has
instituted
 
against
 
it,
 
by
 
a
 
regulator,
 
supervisor
 
or
 
any
 
similar
 
official
 
with
 
primary
 
insolvency,
 
rehabilitative
 
or
 
regulatory
 
jurisdiction
 
over
 
it
 
in
 
the jurisdiction of its
incorporation or organisation or the
 
jurisdiction of its head or
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home office, a proceeding seeking a judgment of insolvency or bankruptcy
 
or any
 
other
relief
 
under
 
an
y
bankruptcy or
 
insolvency law or
 
other similar
 
law
 
affecting
 
creditors'
rights,
 
or
 
a
 
petition
 
is
 
presented
 
for
 
its
 
winding-up
 
or liquidation
 
by
 
it
 
or
 
such
regulator,
 
supervisor
 
or
 
similar
 
official
 
and
 
such
 
proceeding
 
or
 
petition
 
is
 
not
dismissed, discharged, stayed or
 
restrained in each case within 30
 
days of its
 
institution
or presentation;
(d)
 
(except
 
where
 
such
 
action
 
is
 
directly
 
or
 
indirectly
 
undertaken
 
for
 
the
 
purpose
 
of
restructuring,
 
consolidating,
 
amalgamating,
 
merging,
 
rehabilitating
 
or
reorganising
 
that
 
Finance
 
Party
 
to
 
enable
 
it
 
to
 
continue
 
its
 
business)
 
has
 
a resolution
passed for its winding-up,
 
official management or liquidation;
(e)
 
(except
 
where
 
such
 
action
 
is
 
directly
 
or
 
indirectly
 
undertaken
 
for
 
the
 
purpose
 
of
restructuring,
 
consolidating,
 
amalgamating,
 
merging,
 
rehabilitating
 
or
reorganising
 
that
 
Finance
 
Party to
 
enable it to
 
continue its
 
business) seeks or
 
becomes
subject
 
to
 
the
 
appointment
 
of
 
an
 
administrator,
 
provisional
 
liquidator,
 
conservator,
receiver, trustee, custodian or
 
other similar official for it or for all or substantially
 
all its
assets;
(f)
 
causes or
 
is subject to
 
any event
 
with respect
 
to it which,
 
under the applicable
 
laws of any
jurisdiction, has an analogous
 
effect to any
 
of the events
 
specified in paragraphs
 
(a) to (e)
above; or
(g)
 
takes any action in furtherance of,
 
or indicating its
 
consent to, approval of, or
acquiescence in, any of the foregoing
 
acts.
"
Interest
 
Period
"
 
means,
 
in
 
relation
 
to
 
an
 
Advance,
 
each
 
period
 
determined
 
in
accordance with Clause 10 (
Interest Periods
) and, in relation
 
to an Unpaid Sum, each period
determined in accordance with Clause 9.5 (
Default interest
).
"
Interpolated
 
Screen
 
Rate
"
 
means
,
in
 
relation
 
to
 
a
 
Screen
 
Rate for
 
any
 
Term
 
Rate Advance
not in Dollars,
 
the rate (rounded to the
 
same number of decimal
 
places as
 
the two relevant
 
Screen
Rates) which results
 
from interpolating on a linear
 
basis between:
(a)
 
the applicable Screen Rate for the longest period
 
(for which that Screen Rate
 
is
available) which is less than the Interest Period
 
of that Advance); and
(b)
 
the applicable Screen Rate for the shortest period
 
(for which that Screen
 
Rate is
available) which exceeds the Interest Period of that Advance,
each as of the Quotation
 
Time
 
for the currency of that Advance.
"
Lender
" means:
(a)
 
any Original Lender; and
(b)
 
any bank which has become
 
a Party as a
 
Lender in accordance with Clause 2.2
(
Increase of Commitments
) or Clause 23 (
Changes
 
to the Lenders
),
which in
 
each
 
case has
 
not ceased
 
to
 
be a Party in
 
accordance with
 
the terms of
 
this
Agreement.
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"
Lookbac
k
Period
"
means
 
the
 
number
 
of
 
days
 
specified
 
as
 
such
 
in
 
the
 
applicable
Reference Rate Terms.
"
Majority Lenders
" means a Lender or Lenders:
(a)
 
whose
 
Commitments
 
aggregate
 
more
 
than
 
66⅔
 
per
 
cent.
 
of
 
the
 
Total
Commitments; or
(b)
 
if
 
the
 
Total
 
Commitments
 
have
 
been
 
reduced
 
t
o
zero,
 
whose
 
Commitments
aggregate
 
more
 
than
 
66⅔
 
per
 
cent.
 
of
 
the
 
Total
 
Commitments
 
immediately
 
before
the reduction.
"
Margin
" means, at any time in relation to an Advance
 
(other than a Dollar
 
Swingline
Advance), 0.175 per cent.
 
per
 
annum.
"
Market
 
Disruption
 
Rate
" means the rate (if any) specified
 
as such in the applicable
Reference Rate Terms.
"
Material
 
Adverse
 
Effect
"
 
means
 
a
 
material
 
adverse
 
effect
 
on
 
the
 
ability
 
of
 
the Obligors
(taken
 
as
 
a whole)
 
to
 
perform their
 
payment obligations
 
under
 
the Finance Documents.
"
Material Subsidiary
" shall mean:
(a)
 
as at the
 
date of this
 
Agreement, each
 
Borrower and
 
any Subsidiary of
 
ABB that
is listed in Schedule 8 (
Material Subsidiaries
); and
(b)
 
at any time thereafter,
(i)
 
each Borrower; and
(ii)
 
any Subsidiary of ABB, that:
(A)
 
is
 
the
 
holding
 
company
 
of
 
a
 
country
 
(not
 
a
 
region)
 
and
 
that,
 
together
with
 
its Subsidiaries,
 
has combined
 
third party
 
revenues or
 
third
 
party
assets
 
in
 
excess
 
of
 
5
 
per
 
cent.
 
of
 
the
 
consolidated
 
revenues
 
or
consolidated total assets of the Group;
(B)
 
on
 
a
 
non-consolidated
 
(legal
 
entity)
 
basis
 
has
 
third
 
party
 
revenues
or
 
third
 
party
 
assets
 
in
 
excess
 
of
 
10
 
per
 
cent.
 
of
 
the consolidated
revenues or consolidated total assets
 
of the Group;
or
(C)
 
has
 
any
 
notes,
 
bonds,
 
debenture
 
stock,
 
loan
 
stock
 
or
 
other
 
securities
outstanding
 
to
 
non-Group
 
third
 
parties
 
and
 
in
 
respect
 
of
 
which
 
a
 
guarantee,
 
keep-well
 
agreement
 
or
 
other
 
credit support
 
has
 
been
provided by ABB,
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provided always that
:
(1)
 
the
 
term
 
"
revenues
"
 
shall
 
exclude
 
any
 
revenues
attributable
 
to
 
activities
 
classified
 
as
 
discontinued
operations in the consolidated financial statements of
 
the Group
and
 
the
 
term
 
"
assets
"
 
shall
 
exclude
 
any
 
assets classified as
held-for-sale or
 
as discontinued
 
operations in the consolidated
financial statements of the Group;
(2)
 
all
 
revenue
 
and
 
asset
 
figures
 
shall
 
be
 
prepared
 
in
accordance
 
with
 
generally
 
accepted
 
accounting
principles
 
used
 
in
 
preparation
 
of
 
the
 
consolidated
 
financial
statements of the Group;
(3)
 
"
third
 
party
 
revenues
"
 
shall
 
exclude
 
any
 
revenues
 
not
included
 
in
 
total
 
revenues
 
in
 
the
 
consolidated
 
income
statement of the Group;
(4)
 
"
third
 
party
 
assets
"
 
shall
 
exclude
 
any
 
assets
 
that
 
are
 
not
included in
 
total assets in
 
the consolidated balance
 
sheet of the
Group; and
(5)
 
all revenue
 
and asset
 
figures shall
 
be
 
for the
 
most recently
completed financial year of ABB.
"
Month
" means
 
a
 
period
 
starting on
 
one
 
day
 
in a
 
calendar month and
 
ending on the
numerically corresponding day in the next
 
calendar month, except that:
(a)
 
(subject to paragraph (c) below) if the numerically corresponding
 
day
 
is not a
Business Day,
 
that period shall end on the next
 
Business Day in that calendar month
 
in
which that period is to end if there is one, or if
 
there is not,
 
on the
 
immediately preceding
Business Day;
(b)
 
if there is
 
no numerically corresponding
 
day in
 
the calendar
 
month in which
 
that
 
period is
to end, that period shall end
 
on the last Business Day in that calendar
 
month; and
(c)
 
if an
 
Interest Period
 
begins on
 
the last
 
Business
 
Day of
 
a calendar
 
month, that
 
Interest
Period
 
shall
 
end
 
on
 
the
 
last
 
Business
 
Day
 
in
 
the
 
calendar
 
month
 
in
 
which
 
that Interest
 
Period
is to
 
end, subject
 
to adjustment
 
in accordance
 
with the
 
rules specified as Business
 
Day
Conventions in the
 
applicable Reference
 
Rate Terms.
The above rules will only
 
apply to the last Month of any period.
"
New
 
Lender
" has th
e
meaning given to that
 
term
 
in
 
Claus
e
23.
1
(
Assignments
 
and
transfers
by the Lenders
).
"
Obligors
" means the Borrowers and the Guarantor.
"
Optional
 
Currency
"
 
means
 
a
 
currency
 
(other
 
than
 
the
 
Base
 
Currency)
 
which
 
complies
with
 
the
 
conditions
 
set
 
out
 
in
 
Claus
e
4.
3
(
Conditions
 
relating
 
to
 
Optional
Currencies
).
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"
Original Financial Statements
" means:
(a)
 
in relation
 
to ABB, the audited
 
consolidated financial statements
 
of the Group
for the financial year
 
ended 31 December 2018;
(b)
 
in relation to each Original Borrower,
 
its financial statements
 
for its financial
year ended 31 December 2018
 
(audited if available); and
(c)
 
in
 
relation
 
to
 
any
 
Additional
 
Borrower,
 
its
 
financial
 
statements
 
delivered
pursuant to Part II of
 
Schedule 2 (
Additional Borrower Conditions Precedent
) (audited
if available).
"
Original Obligors
" means the Original Borrowers
 
and the Guarantor.
"
Outstandings
" means the aggregate
 
of the Base Currency Amount
 
from time
 
to time of each of
the Advances.
"
Participating Member
 
State
" means any
 
member state
 
of the
 
European Union that
 
has
 
the
 
Euro
as its lawful
 
currency in accordance with
 
legislation of the European
 
Union relating to Economic
and Monetary Union.
"
Party
" means a party to this Agreement and includes
 
its successors in title, permitted
 
assigns
and permitted transferees.
"
Primary
Te
rm Rate
"
 
means
 
the
 
rate
 
specified as
 
such
 
in
 
the
 
applicable
 
Reference
 
Rate
Terms.
"
Prime Rate
" means,
 
in respect
 
of any Dollar
 
Swingline Advance,
 
for any day, the
 
rate of
 
interest
per annum
 
announced
 
from time
 
to time
 
by the
 
Dollar Swingline
 
Agent to
 
be its
 
prime rate in
effect at its principal
 
office in New York City and if
 
that rate is
 
less
 
than zero, Prime
 
Rate shall be
deemed to be zero.
"
Project Company
" means any Subsidiary of ABB:
(a)
 
which is a single purpose company whose primary purpose is to invest
 
in, lend
to or carry out a specific project or portfolio
 
of projects; and
(b)
 
none of whose liabilities to repay Project Finance Indebtedness
 
are the subject
of
 
security
 
or
 
a
 
guarantee,
 
indemnity
 
or
 
any
 
similar
 
form
 
of
 
assurance,
 
undertaking
or support
 
by any
 
Group Company
 
save to
 
the extent
 
described in
 
the definition
 
of Project
Finance Indebtedness.
"
Project Finance Indebtedness
" means:
(a)
 
any
 
Indebtedness
 
of
 
a
 
Project
 
Company
 
incurred
 
to
 
finance
 
the
 
project
constituted
 
by
 
the
 
assets
 
and
 
business
 
of
 
such
 
Project
 
Company
 
or
 
any
Indebtedness
 
of
 
such
 
Project
 
Company
 
incurred
 
to
 
refinance
 
any
 
such
aforementioned Indebtedness; and
(b)
 
where neither the
 
persons
 
to whom such
 
Indebtedness is owed (whether or
 
not a Group
Company)
 
nor
 
any
 
other
 
person
 
shall
 
have
 
any
 
recourse
 
whatsoever
 
to
 
any
 
Group
Company (other than such Project Company)
 
for the repayment or
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payment
 
of
 
any
 
sum
 
relating
 
to
 
such
 
Indebtedness
 
other
 
than
 
recourse
 
directly
 
or
 
indirectly
 
to
 
any
 
Group
 
Company
 
under
 
any
 
form
 
of
 
assurance
 
or undertaking,
which
 
recourse
 
(1)
 
is
 
limited
 
to
 
the
 
enforcement
 
of
 
any
 
share pledge granted by a
Group
 
Company
 
over
 
its
 
shares
 
in
 
such
 
Project
 
Company
 
or
 
the
 
enforcement
 
of
 
any
security
 
granted
 
over
 
a shareholder
 
loan
 
between
 
a
 
Group
 
Company and
 
such
 
Project
Company and/or (2) is limited to
 
a claim for damages
 
for
 
breach
 
of
 
an
 
obligation
 
(not
being a
 
payment obligation) of
 
the
 
person against
 
whom that
 
recourse is
 
available and/or
(3)
 
entitles the creditor for
 
that
 
Indebtedness
 
or
 
the
 
relevant
 
Project
 
Company,
 
upon
default
 
by
 
the
 
Project
 
Company
 
(or
 
in
 
other
 
circumstances
 
specified
 
in
 
the
documentation
 
relating to the project) to
 
require a payment to be
 
made (whether to or for
the benefit of
 
that creditor, the
 
Project Company
 
or another
 
person),
provided that
, in
 
the
case of (3),
 
where
 
that payment
 
is capable
 
of being
 
for an amount
 
which
 
is materia
l
either
alone
 
or
 
as
 
a
 
percentage
 
of
 
the
 
Indebtedness
 
financing
 
that project, such recourse
 
is
capable of
 
being called on
 
only during the
 
period on
 
or prior
 
to practical
 
completion of
 
the
project or
 
of that
 
portion of
 
that project
 
being
 
financed by that Indebtedness; or
(c)
 
which
 
the
 
Majority
 
Lenders
 
shall
 
have
 
agreed
 
to
 
treat
 
as
 
Project
 
Finance
Indebtedness for the purposes
 
of this Agreement.
"
Published Rate
" means:
(a)
 
the Primary Term Rate for any Quoted Tenor; or
(b)
 
an RFR.
"
Published Rate Replacement Event
" means, in relation to a
 
Published Rate:
(a)
 
the
 
methodology, formula
 
or other
 
means of determining tha
t
Publishe
d
Rate
has, in the opinion of the Majority Lenders
 
and ABB, materially changed; or
(b)
(i)
(A)
 
the administrator
 
of that
 
Published
 
Rate or
 
its supervisor
 
publicly
announces that such administrator is insolvent; or
(B)
 
information is published in any order, decree, notice,
 
petition or
filing,
 
however
 
described,
 
or
 
filed
 
with
 
a
 
court,
 
tribunal,
 
exchange,
 
regulatory
 
authority
 
or
 
similar
 
administrative,
regulatory
 
or
 
judicial
 
body
 
which
 
reasonably
 
confirms
 
that
 
the
administrator of that Published
 
Rate is insolvent,
provided
 
that
,
 
in
 
each
 
case,
 
at
 
that
 
time,
 
there
 
is
 
no
 
successor
administrator to continue to provide
 
that Published
 
Rate;
(ii)
 
the administrator of that Published
 
Rate publicly
 
announces
 
that it has ceased or
will
 
cease,
 
to
 
provide
 
tha
t
Publishe
d
Rate
 
permanently
 
or indefinitely
 
and,
at
 
that
 
time,
 
there
 
is
 
no
 
successor
 
administrator
 
to continue to provide
 
that
Published Rate;
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(iii)
 
the
 
supervisor
 
of
 
the
 
administrator
 
of
 
that
 
Published
 
Rat
e
publicly
 
announces
that
 
such
 
Published
 
Rate
 
has
 
been
 
or
 
will
 
be
 
permanently
 
or
 
indefinitely
discontinued;
 
(iv)
 
the administrator of
 
that Published Rate
 
or its supervisor announces
 
that
that Screen Rate may no longer be used; or
 
(v)
 
in the case
 
of the Primary
 
Term Rate for
 
any Quoted
 
Tenor for Euro,
 
the
supervisor
 
of
 
the
 
administrator
 
of
 
tha
t
Primary
 
Term
 
Rate
 
makes
 
a public
announcement or publishes information
 
stating that that
 
Primary Term Rate for
that Quoted Teno
 
r
 
is no longer, or as
 
of a specified future date
 
will
 
no
 
longer
 
be,
 
representative
 
of
 
the
 
underlying
 
market
 
or economic
 
reality
 
that
 
it
 
is
intended to
 
measure and
 
that representativeness
 
will
 
not
 
be
 
restored
 
(as
 
determined
 
by
 
such supervisor);
 
or
(c)
 
the administrator of that Published Rate (or the administrator
 
of an interest rate
 
which
 
is
a
 
constituent
 
element
 
of
 
that
 
Published
 
Rate
)
determines
 
that
 
that Published Rate
should be calculated in accordance with its reduced submissions
 
or other contingency or
fallback policies or arrangements and either:
(i)
 
the circumstance(s) or
 
event(s) leading to such
 
determination are
 
not (in
the opinion
 
of the Majority Lenders and ABB)
 
temporary; or
(ii)
 
that Published Rate is calculated in accordance with any such policy or
arrangement
 
for
 
a
 
period
 
no
 
less
 
than
 
the
 
period
 
specified
 
as
 
the
 
"Published
 
Rate
 
Contingency
 
Period"
 
in
 
the
 
Reference
 
Rate
 
Terms
 
relating
 
to
 
that
Published Rate; or
(d)
 
in
 
the
 
opinion
 
of
 
the
 
Majority
 
Lenders
 
and
 
ABB,
 
that
 
Published
 
Rate
 
is
 
otherwise
no
 
longer appropriate
 
for the
 
purposes of calculating
 
interest
 
under
 
this Agreement.
"
Qualifying Bank
" means
(a)
 
any
 
bank as defined in the Swiss Federal
 
Code for
 
Banks
 
and Savings
 
Banks
dated 8 November 1934 (
Bundesgesetz über die Banken und Sparkassen
); or
(b)
 
a
 
person
 
or
 
entity
 
which
 
effectively
 
conducts banking
 
activities
 
with
 
its
 
own
infrastructure
 
and
 
staff
 
as
 
its
 
principal
 
business
 
purpose
 
and
 
which
 
has
 
a banking
license in full force and effect issued in
 
accordance with the banking laws in force in its
jurisdiction of incorporation, or if acting through a branch,
 
issued in accordance
 
with the
banking laws in the jurisdiction of
 
such branch.
"
Qualifying
 
Lender
"
 
has
 
the
 
meaning
 
given
 
to
 
such
 
term
 
in
 
Clause
 
13.1
 
(
Definitions
).
"
Quotation
 
Day
"
 
means
 
the
 
day
 
specified
 
as
 
such
 
in
 
the
 
applicable
 
Reference
 
Rate Terms.
"
Quotation Time
" means the relevant time (if any) specified
 
as such in the applicable
Reference Rate Terms.
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"
Quoted Tenor
" means, in relation to a Primary Term Rate, any
 
period
 
for which that rate is
customarily displayed on the relevant
 
page or screen of an information service.
"
Reference
 
Rate
 
Supplement
"
 
means,
 
in
 
relation
 
to
 
any
 
currency,
 
a
 
document
 
which:
 
(a)
 
is agreed in writing by ABB, each Agent (in its own capacity) and each Agent
(acting
 
on
 
the
 
instructions
 
of
 
the
 
Majority
 
Lenders
 
or,
 
in
 
the
 
case
 
of
 
any
 
Reference
Rate Supplement which
 
has the effect of a
 
reduction in the Margin, all the Lenders);
(b)
 
specifies
 
for
 
that
 
currency
 
the
 
relevant
 
terms
 
which
 
are
 
expressed
 
in
 
this
Agreement to be determined by reference to Reference
 
Rate Terms;
(c)
 
specifies whether
 
that currency
 
is a Compounded
 
Rate Currency
 
or a
 
Term Rate
Currency; and
(d)
 
has been made available to ABB and each Finance Party.
"
Reference
 
Rate Terms
" means, in relation to:
(a)
 
a currency;
(b)
 
a Utilisation or an Unpaid Sum in that currency;
(c)
 
an Interest Period for that
 
Utilisation or Unpaid Sum
 
(or
 
other period
 
for the
accrual of commission or fees in a currency); or
(d)
 
any term of this Agreement
 
relating to the determination
 
of a rate of interest
 
in
relation to such a Utilisation or Unpaid Sum,
the
 
terms
 
set
 
out
 
for
 
that
 
currency,
 
and
 
(where
 
such
 
terms
 
are
 
set
 
out
 
for
 
different
categories of Utilisation, Unpaid Sum or
 
accrual of commission or fees in that currency) for
 
the
category of that Utilisation, Unpaid Sum
 
or accrual,
 
in Schedule 10 (
Reference
Rate Terms
) or in
any Reference Rate Supplement.
"
Relevant
 
Market
"
 
means the
 
market
 
specified as such
 
in
 
the applicable
 
Reference
 
Rate
Terms.
"
Relevant
 
Nominating
 
Body
"
 
means
 
any
 
applicable
 
central
 
bank,
 
regulator
 
or
 
other
supervisory authority
 
or a
 
group of
 
them, or
 
any working
 
group or
 
committee
 
sponsored
 
or chaired
by,
 
or
 
constituted
 
at the
 
request
 
of,
 
any of
 
them
 
or the
 
Financial Stability Board.
"
Replacement
 
Reference Rate
" means a reference rate which is:
(a)
 
formally
 
designated,
 
nominated
 
or
 
recommended
 
as
 
the
 
replacement
 
for
 
a
Published Rate by:
(i)
 
the
 
administrator of tha
t
Publishe
d
Rate (
provided that
the market
 
or
economic reality that such benchmark rate measures
 
is the same as that
measured by that Published
 
Rate); or
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(ii)
 
any Relevant Nominating Body,
and
 
if
 
replacements
 
have,
 
at
 
the
 
relevant
 
time,
 
been
 
formally
 
designated,
 
nominated
 
or
 
recommended
 
under
 
both
 
paragraphs,
 
the
 
"Replacement
 
Reference Rate" will
be the replacement under paragraph (ii) above;
(b)
 
in
 
the
 
opinion
 
of
 
the
 
Majority
 
Lenders
 
and
 
ABB
,
generally
 
accepted
 
in
 
the
international
 
or
 
any
 
relevant
 
domestic
 
syndicated
 
loan
 
markets
 
as
 
the
 
appropriate
successor to a Published
 
Rate; or
(c)
 
in the opinion of the
 
Majority Lenders and ABB, an
 
appropriate successor to a
Published Rate.
"
Reporting Day
" means the day (if any) specified as such
 
in the applicable Reference
Rate Terms.
"
Reporting Time
" means the relevant time (if any) specified as such in the
 
applicable
Reference Rate Terms.
"
Reservations
"
 
means
 
any
 
general
 
principles
 
of
 
law
 
which
 
are
 
set
 
out
 
as
 
qualifications as to
matters of law in any legal opinion delivered to the Facility Agent under Schedule
 
2 (
Conditions
Precedent
).
"
Resignation
 
Letter
"
 
means
 
a
 
letter
 
substantially
 
in
 
the
 
form
 
set
 
out
 
i
n
Schedule
 
7
 
(
Form of
Resignation Letter
).
"
Restricted Party
" means:
(a)
 
a person that is a target of Economic Sanctions
 
Laws; or
(b)
 
a person, other than an individual, located
 
in or incorporated under the laws
 
of
a
 
country
 
or
 
territory
 
that
 
is
 
the
 
target
 
of
 
country-wide
 
or
 
territory-wide
Economic Sanctions
 
Laws that
 
prohibit doing
 
business in
 
or with that
 
country
 
or territory.
"
Revolving Facility
 
Affiliate
" means,
 
in respect
 
of a
 
Lender that
 
is a
 
Swingline Lender,
 
an
Affiliate of that Swingline Lender that is itself a Lender.
"
RFR
" means the rate specified as such in the
 
applicable Reference Rate Terms.
"
RFR Banking
 
Day
" means any
 
day specified
 
as such in
 
the applicable Reference
 
Rate
 
Terms.
"
Rollover Advance
" means one or more Advances (other than
 
Swingline Advances):
 
(a)
 
made or
 
to be
 
made on
 
the same
 
day that
 
a maturing
 
Advance is
 
due to
 
be repaid;
 
(b)
 
the
 
aggregate
 
amount
 
of
 
which
 
is
 
equal
 
to
 
or
 
less
 
than
 
the
 
amount
 
of
 
the
maturing Advance;
(c)
 
in the same currency as the maturing Advance (unless
 
it arose as a result
 
of the
operation of Clause 6.2 (
Unavailability of a currency
)); and
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(d)
 
made or
 
to
 
be made
 
to a
 
Borrower for the
 
purpose of
 
refinancing
 
a maturing
Advance made to such Borrower.
"
Sanctions
 
Authorities
"
 
means
 
the
 
Office
 
of
 
Foreign
 
Assets
 
Control
 
of
 
the
 
U.S.
Department
 
of
 
the
 
Treasury
 
(OFAC),
 
the
 
U.S.
 
Department
 
of
 
State,
 
the
 
European
 
Union,
Switzerland, the United Kingdom, and
 
the United Nations.
"
Screen Rate
" means:
(a)
 
in
 
respect
 
of
 
a
 
Term
 
Reference
 
Rate,
 
the
 
rate
 
specified
 
in
 
the
 
applicable
Reference Rate Terms; and
(b)
 
in
 
relation
 
t
o
€STR,
 
the
 
euro
 
short-term
 
rate
 
administered
 
by
 
the
 
European
Central
 
Bank
 
(or
 
any
 
other
 
person
 
which
 
takes
 
over
 
the
 
administration
 
of
 
that
 
rate)
displaye
d
(before
 
any
 
correction,
 
recalculation
 
or
 
republication
 
by
 
the
 
administrator
)
on
 
pag
e
EUROSTR
=
of
 
th
e
Thomso
n
Reuters
 
screen
 
(or
 
any replacement
 
Thomson
Reuters page which displays
 
that rate).
If such
 
page or
 
service ceases to
 
be available,
 
the Facility
 
Agent may
 
specify another
 
page
 
or
service
 
displaying
 
the
 
relevant
 
rate
 
after
 
consultation
 
with
 
AB
B
and
 
the
 
Lenders.
"
Second
 
Extension
 
Request
"
 
has
 
the
 
meaning
 
given
 
to
 
it
 
in
 
Claus
e
2.
3
(
Extension
Option
).
"
Securitisations
"
 
means
 
any
 
local
 
or
 
global
 
securitisation
 
programme
 
from
 
time
 
to time
established (including as of the date of this Agreement) by any Group
 
Company, each as may be
modified, supplemented, renewed, substituted,
 
varied or amended.
"
Security
"
 
means
 
any
 
mortgage,
 
charge,
 
assignment
 
by
 
way
 
of
 
security,
 
pledge,
hypothecation, lien and any other security interest
 
of any kind whatsoever.
"
Separate Advances
" has the meaning given to that term
 
in Clause 7.1 (
Repayment
 
of
Advances
).
"
Specified
 
Time
"
 
means
 
a
 
time
 
determined
 
in
 
accordance
 
with
 
Schedule
 
5
(
Timetables
).
"
Subsidiary
" means
 
a subsidiary within
 
the meaning of
 
section 1159 of the
 
Companies
 
Act
2006.
"
Swingline
 
Advance
"
 
means
 
a
 
Dollar
 
Swingline
 
Advance
 
or
 
a
 
Euro
 
Swingline
 
Advance.
"
Swingline Affiliate
" means, in respect
 
of a Lender, an Affiliate of that
 
Lender that is
 
a
Swingline Lender.
"
Swingline Agents
" means the Dollar Swingline
 
Agent and the Euro
 
Swingline Agent and
"
Swingline Agent
" means either of them.
"
Swingline
 
Commitment
"
 
means,
 
in
 
respect
 
of
 
a
 
Swingline
 
Lender,
 
its
 
Dollar
Swingline Commitment or its Euro Swingline
 
Commitment.
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"
Swingline Lender
" means a Dollar Swingline
 
Lender or a Euro Swingline Lender.
"
TARGET
 
Day
"
 
means any
 
day
 
on
 
which
 
TARGET2
 
is
 
open
 
for
 
the
 
settlement of
payments in Euro.
"
TARGET2
"
 
means
 
the
 
Trans-European
 
Automated
 
Real-time
 
Gross
 
Settlement Express
Transfer
 
payment
 
system
 
which
 
utilises
 
a
 
single
 
shared
 
platform
 
and
 
which
 
was launched on
19 November 2007.
"
Tax
" means
 
any
 
tax,
 
levy,
 
impost,
 
duty
 
or other
 
charg
e
or
 
withholding
 
of a
 
similar nature
(including any
 
penalty or interest payable
 
in connection with
 
any failure to
 
pay or
 
any delay in
paying any of the same).
"
Te
rm Rate
 
Advance
" means
 
an
y
Advance
 
(not being
 
a Swingline
 
Advance
)
or, if applicable,
Unpaid
 
Sum
 
in
 
a
 
Term
 
Rate
 
Currency
 
to
 
the
 
extent
 
that
 
it
 
is
 
not,
 
or
 
has
 
not
 
become
 
a
"Compounded
 
Rate
 
Advance"
 
for
 
its
 
then
 
current
 
Interest
 
Period
 
pursuant
 
to
 
the
 
applicable
Reference Rate Terms.
"
Te
rm Rate Currency
" means:
(a)
 
Dollars and Euro; and
(b)
 
any currency specified as such in a Reference
 
Rate Supplement relating
 
to that
currency,
to
 
the
 
extent,
 
in
 
any
 
case,
 
not
 
specified
 
otherwise
 
in
 
a
 
subsequent
 
Reference
 
Rate
Supplement.
"
Ter
m
Reference
 
Rate
"
 
means,
 
in
 
relation
 
to
 
a
 
Term
 
Rate
 
Advance
,
the
 
applicable
 
Primary
Term
 
Rate as
 
of
 
the Quotation
 
Time
 
for a
 
period
 
equal in
 
length to
 
the Interest Period
 
of
 
that
Advance.
"
Term
 
Reference
 
Rat
e
CAS
"
 
means,
 
in
 
relation
 
to
a
Term
 
Rate
 
Advance,
 
any
 
rate which
 
is
either:
(a)
 
specified as such in the applicable Reference
 
Rate
 
Terms; or
(b)
 
determined by the relevant Agent (acting on the instructions
 
of all the Lenders)
(or by any
 
other Finance Party
 
which agrees
 
to determine that
 
rate in place
 
of tha
t
Agent)
in
 
accordance with
 
the methodology
 
specified in
 
the
 
applicable
 
Reference Rate
 
Terms.
"
Termination
 
Date
"
 
means,
 
subject
 
to
 
Clause
 
2.3
 
(
Extension
 
Option
),
 
the
 
fifth
anniversary of the date of this Agreement.
"
Total
 
Commitments
"
 
means
 
the
 
aggregate
 
Commitments
 
of
 
the
 
Lenders,
 
being
$2,000,000,000 at the date of this Agreement.
"
Total Outstandings
" means
 
the aggregate from time to time
 
of the Outstandings.
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"
Total Swingline
 
Facility Amount
" means
 
the higher
 
of (a)
 
the aggregate
 
of the
 
Dollar
 
Swingline
Commitments and
 
(b)
 
the aggregate
 
of the
 
Euro Swingline
 
Commitments, being $750,000,000
as at the date of this Agreement.
"
Transfer Certificate
" means
 
a certificate
 
substantially in
 
the form
 
set out
 
in Schedule
 
4 (
Form of
Transfer Certificate
) or any other form agreed between the
 
Facility Agent
 
and ABB.
"
Transfer Date
" means, in relation to a transfer, the
 
later of:
(a)
 
the proposed Transfer Date specified in the Transfer Certificate; and
(b)
 
the date on which
 
the Facility
 
Agent executes
 
the Transfer Certificate.
"
Unpaid Sum
" means any sum due
 
and payable but unpaid
 
by a Borrower under
 
the Finance
Documents.
"
US
 
GAAP
"
 
means generally
 
accepted
 
accounting
 
principles in the
 
United
 
States of America.
"
US Tax Obligor
" means:
(a)
 
a Borrower which is resident for
 
tax purposes in the United
 
States of America;
or
(b)
 
an Obligor
 
some or all
 
of whose payments under
 
the Finance
 
Documents are
from sources within
 
the United States for US federal
 
income tax purposes.
"
Utilisation
" means a utilisation of the Facility.
"
Utilisation Date
" means the date
 
of a Utilisation,
 
being the date on
 
which
 
an Advance
 
is to be
made.
"
Utilisation Request
" means a notice substantially in the form set
 
out in Schedule 3
(
Utilisation Request
).
"
VAT
" means value added tax as provided for in the
 
Value
 
Added Tax Act 1994 and any other
tax of a similar nature.
1.2
Construction
(a)
 
Any reference in this Agreement to:
(i)
 
"
assets
"
 
includes,
 
except
 
in
 
the
 
definition
 
of
 
Material
 
Subsidiary,
present and future properties, revenues and rights
 
of every description;
 
(ii)
 
"
bank
" means a bank entity that is licensed
 
to provide banking
 
services
in
 
accordance
 
with
 
applicable
 
regulations
 
in
 
its
 
jurisdiction
 
of
incorporation;
(iii)
 
the
 
"
European
 
interbank
 
market
"
 
means
 
the
 
interbank
 
market
 
for
Euro operating in Participating
 
Member States;
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(iv)
 
a
 
"
Finance
 
Document
"
 
or
 
any
 
other
 
agreement
 
or
 
instrument
 
is
 
a
 
reference
to that
 
Finance Document or
 
other agreement
 
or instrument
 
as amended, novated,
supplemented,
 
extended, replaced or restated;
(v)
 
a
 
"
person
"
 
includes
 
any
 
individual,
 
firm,
 
company,
 
corporation,
government,
 
state
 
or
 
agency
 
of
 
a
 
state
 
or
 
any
 
association, trust,
 
joint
 
venture,
consortium or
 
partnership (whether
 
or not
 
having separate
 
legal personality);
(vi)
 
a
 
"
regulation
"
 
includes
 
any
 
regulation,
 
rule,
 
official
 
directive,
 
request
 
or
guideline (whether or not having
 
the force of law but, if not
 
having the
 
force
 
of
law,
 
th
e
compliance
 
with
 
which
 
is
 
customary)
 
of
 
any
 
governmental,
 
intergovernmental
 
or
 
supranational
 
body,
 
agency,
department
 
or
 
of
 
any
 
regulatory,
 
self-regulatory
 
or
 
other
 
authority
 
or
organisation;
 
(vii)
 
a
 
"
financial
 
year
"
 
in
 
relation
 
to
 
ABB,
 
means
 
a
 
period
 
in
 
respec
t
of
which it is required to produce annual
 
audited financial statements;
(viii)
 
except
 
where
 
the
 
context
 
otherwise
 
requires,
 
words
 
in
 
the
 
singular
include the plural and in the plural include
 
the singular;
 
(ix)
 
a
 
provision
 
of
 
law
 
is
 
a
 
reference
 
to
 
that
 
provision
 
as
 
amended
 
or
 
re-
enacted; and
 
(x)
 
unless
 
a
 
contrary
 
indication
 
appears,
 
a
 
time
 
of
 
day
 
is
 
a
 
reference
 
to
London time.
(b)
 
The determination
 
of the
 
extent to
 
which a
 
rate is
 
"
for a
 
period equal
 
in length
"
to
 
an Interest
 
Period shall
 
disregard any
 
inconsistency arising from
 
the last
 
day of that
Interest Period
 
being
 
determined pursuant
 
to the
 
terms of
 
this Agreement.
(c)
 
Where there is a reference
 
in this Agreement to any amount, limit or threshold specified
 
in
 
Dollars,
 
in
 
ascertaining
 
whether
 
or
 
not
 
that
 
amount,
 
limit
 
or
 
threshold
 
has
 
been
attained,
 
broken
 
or
 
achieved,
 
as
 
the
 
case
 
may
 
be,
 
a
 
non-
 
Dollar
 
amount
 
shall,
 
unless
the
 
context
 
otherwise
 
requires
 
or
 
the
 
contrary
 
is indicated, be counted on the basis
 
of
the equivalent
 
in Dollars
 
of that
 
amount using
 
the Facility
 
Agent's
 
Spot Rate
 
of Exchange.
(d)
 
Section, Clause and Schedule headings
 
are for ease of reference only.
(e)
 
Unless
 
a
 
contrary
 
indication
 
appears,
 
a
 
term
 
used
 
in
 
any
 
other
 
Finance
Document
 
or
 
in
 
any
 
notice
 
given
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
has the same meaning in that Finance Document or notice
 
as in this
 
Agreement.
(f)
 
A Default is "
continuing
" if it has not been remedied
 
or waived.
(g)
 
For the avoidance
 
of doubt,
 
where any
 
person is
 
party to
 
this Agreement
 
in more
than
 
one
 
capacity,
 
reference
 
to
 
that
 
person
 
i
n
one
 
capacity
 
shall
 
not
 
(except where
 
the
 
context
 
otherwise
 
requires)
 
include
 
reference
 
to
 
it
 
in
 
any
 
other
 
capacity.
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(h)
 
A
 
reference
 
in
 
this
 
Agreement
 
to
 
a
 
page
 
or
 
screen
 
of
 
an
 
information
 
service
displaying a rate shall include:
 
(i)
 
any
 
replacement
 
page
 
of
 
that
 
information service
 
which
 
displays that
rate; and
(ii)
 
the
 
appropriate page of such other information service which
 
displays
that rate from time to time in place
 
of that information service,
and, if such page or service ceases to be available,
 
shall include any other
 
page
or
 
service
 
displaying
 
that
 
rate
 
specified
 
by
 
the
 
Agent
 
after
 
consultation
 
with
ABB.
(i)
 
A
 
reference
 
in
 
this
 
Agreement
 
to
 
a
 
Central
 
Bank
 
Rate
 
shall
 
include
 
any
successor rate to, or replacement rate for, that rate.
 
(j)
 
Any
 
Reference
 
Rat
e
Supplement
 
relating
 
to
 
a
 
currency
 
overrides
 
anything
relating to that currency
 
in:
 
(i)
 
Schedule
 
10
 
(
Reference
 
Rate
 
Terms
);
 
or
 
(ii)
 
any earlier Reference Rate
 
Supplement.
(k)
 
A
 
Compounding
 
Methodology
 
Supplement
 
relating
 
to
 
the
 
Daily
 
Non-
 
Cumulative
Compounded RFR
 
Rate or
 
the Cumulative
 
Compounded RFR
 
Rate overrides
 
anything
relating to that rate in:
(i)
 
Schedule
 
11
 
(
Daily
 
Non-Cumulative
 
Compounded
 
RFR
 
Rate
)or
 
Schedule 12 (
Cumulative Compounded RFR Rate
), as the case may be;
or
(ii)
 
any earlier Compounding
 
Methodology Supplement.
 
(l)
 
References
 
to a Commitment
 
of Citibank,
 
N.A./Citibank, N.A.,
 
London Branch
(together the "
Citi Entities
") in relation to
 
the Facility shall be construed as
 
a reference
to the
 
aggregate Commitment of
 
Citibank, N.A., Citibank,
 
N.A. and London Branch in
relation to the
 
Facility (as
 
allocated between
 
the Citi
 
Entities
 
in such proportions
 
and such
amounts as each
 
Citi Entity notifies to the
 
Facility
 
Agent from time to time).
(m)
 
References
 
to
 
a
 
Commitment
 
of
 
Bank
 
of
 
America
 
Europe
 
Designated
 
Activity
Company/Bank
 
of
 
America
 
N.A./Bank
 
of
 
America
 
N.A.,
 
London
 
Branch
(together the "
BofA Entities
") in relation to the Facility
 
shall be construed
 
as a reference
to the aggregate
 
Commitment of
 
Bank of
 
America Europe
 
Designated
 
Activity Company,
Bank
 
of
 
America
 
N.A., and
 
Bank
 
of
 
America N.A.,
 
London Branch
 
in relation
 
to the
Facility (as allocated between
 
the BofA
 
Entities in such
 
proportions and such amounts
 
as
each BofA Entity
 
notifies to
 
the Facility
 
Agent
 
from time to time).
1.3
Dutch Terms
In this Agreement, where
 
it relates to a Dutch entity, a reference to:
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(a)
 
a necessary action to authorise where applicable, includes
 
without limitation:
(i)
 
any action required to comply
 
with the Dutch Works Councils Act
 
(
Wet
op de ondernemingsraden
); and
 
(ii)
 
obtaining an unconditional positive advice (
advies
) from the competent
works council(s);
 
(b)
 
a winding-up, administration
 
or dissolution includes
 
a Dutch entity being:
(i)
 
declared bankrupt (
failliet verklaard
);
(ii)
 
dissolved (
ontbonden
);
(c)
 
a
 
moratorium
 
includes
 
surséance
 
van
 
betaling
and
 
granted
 
a
 
moratorium
includes
surséance verleend
;
(d)
 
a liquidator or a trustee in bankruptcy
 
includes a
curator
;
(e)
 
an administrator includes
 
a
bewindvoerder
; and
 
(f)
 
a(n) (administrative) receiver does not include
 
a
curator
or
bewindvoerder
.
1.4
Currency Symbols and Definitions
 
"
$
" and "
Dollars
" denote the lawful currency of the United States
 
of America, "
£
" and
"
Sterling
" denote
 
the lawful
 
currency of
 
the United
 
Kingdom,
 
"
€
", "
EUR
" and
 
"
Euro
"
 
denote
 
the
single currency
 
of the
 
Participating Member
 
States and
 
"
CHF
" and
 
"
Swiss
francs
" denote
 
the
lawful currency of Switzerland.
1.5
Third Party
 
Rights
 
A person who is not a Party has no right under the
 
Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Agreement.
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SECTION 2
THE
FACILITY
2.
THE FACILITY
2.1
The Facility
Subject
 
to
 
the
 
terms
 
of
 
this
 
Agreement,
 
the
 
Lenders
 
make
 
available
 
to
 
the
 
Borrowers,
 
a
multicurrency
 
revolving
 
credit
 
facility
 
(the
 
"
Facility
")
 
in
 
a
 
maximum
 
aggregate
 
amount
 
of
$2,000,000,000, including within it the following
 
sub-facilities:
(a)
 
a
 
Dollar
 
revolving
 
swingline
 
facility
 
(the
 
"
Dollar Swingline
 
Facility
")
 
in
 
a
 
maximum
 
aggregate
 
amount
 
equal
 
to
 
the
 
aggregate
 
Dollar
 
Swingline
 
Commitments; and
(b)
 
a
 
Euro
 
revolving
 
swingline
 
facility
 
(the
 
"
Euro
 
Swingline
 
Facility
")
 
in
 
a
 
maximum
 
Base
 
Currency
 
Amount
 
equal
 
to
 
the
 
aggregate
 
Euro
 
Swingline Commitments.
Each
 
Swingline
 
Commitment
 
of
 
each
 
Lender
 
that
 
is
 
a
 
Swingline
 
Lender
 
forms
 
part
 
of
 
the
Commitment
 
of
 
that
 
Lender.
 
Each
 
Swingline
 
Commitment
 
of
 
each
 
Swingline
 
Lender that is
a Swingline Affiliate
 
of another
 
Lender forms part
 
of that
 
other Lender's Commitment.
 
For the
avoidance
 
of doubt
 
each Lender
 
and its
 
Swingline
 
Affiliate shall be
 
treated
 
as
 
having
 
a
 
single
participation in the Facility and a single vote.
2.2
Increase of Commitments
(a)
 
ABB may by giving prior notice to
 
the Facility Agent by no later
 
than the date
falling
 
90
 
Business
 
Days
 
after
 
the
 
effective
 
date
 
of
 
a
 
cancellation
 
of
 
the Available
Commitments
 
and/or
 
any
 
Swingline
 
Commitments
 
of
 
(i)
 
a
 
Defaulting
 
Lender
 
(or
 
its
Revolving Facility Affiliate
 
or Swingline
 
Affiliate) in accordance
 
with
 
paragrap
h
(f
)
of
Claus
e
8.
7
(
Right
 
of
 
replacement
 
or
 
repayment
 
and
cancellation in
 
relation to a
 
single
Lender
),
 
(ii)
 
any
 
Lender
 
in
 
accordance with
 
Clause
 
8.1
 
(
Lender Illegality
)
 
or
 
(iii) any
Lender that has
 
refused an Extension
 
Request
 
and
 
has
 
not
 
been
 
replaced
 
in
 
accordance
with
 
Claus
e
8.
7
(
Right
 
of
replacement
 
or
 
repayment
 
and
 
cancellation
 
in
 
relation
 
to
a
 
single
 
Lender
),
 
request
 
that
 
the
 
Total
 
Commitments
 
or
 
the
 
relevant
 
Swingline
Commitments
 
be
 
increased
 
(and
 
the
 
Total
 
Commitments
 
or
 
the
 
relevant
 
Swingline
Commitments shall be so increased) in an aggregate amount in the
 
Base Currency of up
to the amount
 
of the
 
Available
 
Commitments, the relevant
 
Swingline
 
Commitments or
the Commitments
 
so cancelled as follows:
(i)
 
the
 
increased
 
Commitments
 
and/or
 
the
 
relevant
 
Swingline
Commitments will be assumed by one
 
or more Lenders or other banks (each
 
an
"
Increase Lender
") (none of which may be
 
a member
 
of the Group) selected
 
by
ABB and each of which confirms its willingness to
 
assume and does assume all
the
 
obligations
 
of
 
a
 
Lender
 
corresponding
 
to
 
that
 
part
 
of
 
the
 
increased
Commitments and/or
 
the relevant Swingline
 
Commitments which
 
it is
 
to assume,
as if
 
it had
 
been an
 
Original Lender;
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(ii)
 
each of the
 
Obligors and any
 
Increase Lender shall assume obligations
 
towards
one
 
another
 
and/or
 
acquire
 
rights
 
against
 
one
 
another
 
as
 
the
 
Obligors and the
Increase Lender
 
would have
 
assumed and/or acquired
 
had the
 
Increase Lender
been an Original Lender;
(iii)
 
each
 
Increase
 
Lender
 
shall
 
become
 
a
 
Party
 
as
 
a
 
"Lender"
 
and
 
any
 
Increase
Lender
 
and each
 
of
 
the
 
other
 
Finance Parties
 
shall assume obligations
 
towards
one another
 
and acquire rights
 
against one
 
another as
 
that Increase
 
Lender and
those
 
Finance
 
Parties
 
would
 
have
 
assumed and/or
 
acquired
 
had
 
the
 
Increase
Lender been an Original Lender;
 
(iv)
 
the
 
Commitments
 
and
 
Swingline
 
Commitments
 
of
 
the
 
other
 
Lenders
shall continue in full force and effect; and
 
(v)
 
any increase
 
in
 
the
 
Total
 
Commitments and/or the
 
relevant Swingline
Commitments
 
shall
 
take
 
effect
 
on
 
the
 
date
 
specified
 
by
 
ABB
 
in
 
the notice
referred to above
 
or any later
 
date on which
 
the conditions set out in
 
paragraph
(b) below are satisfied.
No
 
Lender
 
shall
 
have
 
any
 
obligation
 
to
 
act
 
as
 
an
 
Increase
 
Lender
 
unless
 
it
indicates that it is willing to do so in
 
accordance with sub-paragraph (i).
(b)
 
An increase
 
in the
 
Total Commitments and/or
 
any Swingline
 
Commitments will
only be effective on:
 
(i)
 
the
 
execution by the
 
Facility Agent
 
of an Increase Confirmation
 
from
the relevant Increase Lender; and
 
(ii)
 
in relation
 
to an
 
Increase Lender
 
which is
 
not a
 
Lender immediately
 
prior
to
 
the relevant
 
increase the
 
performance by
 
the Facility
 
Agent of
 
all
 
necessary
 
"know
 
your
 
customer"
 
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
regulations
 
in
 
relation
 
to
 
the
 
assumption
 
of
 
the increased
 
Commitments
 
and/or
 
Swingline
 
Commitments
 
by
 
that Increase
 
Lender,
 
the
 
completion
 
of
 
which
 
the
 
Facility
 
Agent
 
shall promptly notify to
 
ABB and
 
the Increase
Lender.
(c)
 
No
 
Swingline
 
Commitment
 
of a
 
Lender
 
may
 
exceed
 
the
 
Commitment
 
of
 
that Lender
or
 
its
 
Revolving
 
Facility
 
Affiliate
 
pursuant
 
to
 
the
 
operation
 
of
 
this Clause 2.2.
 
Accordingly
 
where the
 
Swingline
 
Commitments are
 
to be
 
increased pursuant
 
to
 
this
Clause
 
to
 
replace
 
Swingline
 
Commitments
 
of
 
a
 
Swingline Lender
 
that
 
have been
cancelled pursuant to
 
paragraph (f) of
 
Clause 8.7 (
Right
of replacement or
 
repayment and
cancellation in relation to a
 
single Lender
) or Claus
e
8.
1
(
Lender
 
Illegality
)
 
without
 
a
commensurate
 
cancellation
 
of
 
the
 
Commitments of
 
that
 
Swingline Lender's
 
Revolving
Facility
 
Affiliate
 
being
 
required at the time of such cancellation,
 
that Revolving Facility
Affiliate
 
shall
 
(to
 
the
 
extent
 
of
 
its
 
Commitments
 
at
 
the
 
time
 
of
 
the
 
increase
 
in
Swingline
 
Commitments) be
 
required to
 
transfer its
 
Commitments to
 
the relevant
 
Increase
Lender
 
(or
 
its
 
Affiliate)
 
on
 
the
 
terms
 
provided
 
for
 
in
 
Clause
 
35.6
 
(
Replacement
of
 
a
Defaulting Lender
) to the
 
extent necessary
 
to ensure
 
that the
 
Commitments
 
of the
 
Increase
Lender (or
 
its Affiliate)
 
are at
 
least equal
 
to each
 
of the
 
Swingline Commitments assumed
by that Increase Lender.
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(d)
 
Each
 
Increase
 
Lender,
 
by
 
executing
 
the
 
Increase
 
Confirmation,
 
confirms
 
(for the
avoidance
 
of
 
doubt) that
 
the Facility
 
Agent has
 
authority
 
to
 
execute
 
on its
 
behalf
 
any
amendment or waiver that has
 
been approved by or on
 
behalf of the requisite
 
Lender or
Lenders in accordance
 
with this Agreement on or prior to the date on which
 
the increase
becomes effective.
(e)
 
Unless the
 
Facility Agent
 
otherwise
 
agrees
 
or
 
the
 
increased
 
Commitment
 
and/or
 
Swingline
Commitment
 
is assumed
 
by an
 
existing Lender, ABB
 
shall, on the date upon which the
increase takes
 
effect, promptly on demand
 
pay the
 
Facility
 
Agent the
 
amount of
 
all costs
and
 
expenses (including
 
legal
 
fees)
 
reasonably incurred
 
by
 
it
 
in
 
connection
 
with
 
any
 
increase
 
in Commitments
 
and/or Swingline
 
Commitments
 
under this Clause 2.2.
(f)
 
ABB may pay to
 
the Increase
 
Lender a fee
 
in the amount and
 
at the times
 
agreed
 
between
ABB and
 
the Increase
 
Lender in
 
a letter
 
between ABB
 
and the Increase
 
Lender setting out
that fee.
(g)
 
Clause
 
23.4
 
(
Limitation
 
of
 
responsibility
 
of
 
Existing
 
Lenders
)
 
shall
 
apply
mutatis
mutandi
s
in
 
this
 
Claus
e
2.
2
in
 
relation
 
to
 
an
 
Increase
 
Lender
 
as
 
if references in that
Clause to:
(i)
 
an "
Existing Lender
" were references to
 
all the Lenders
 
immediately
prior to the relevant increase;
(ii)
 
the "
New Lender
" were references to that "
Increase Lender
"; and
(iii)
 
a "
re-transfer
" and "
re-assignment
" were references to respectively
 
a
"
transfer
" and "
assignment
".
 
(h)
 
The Increase Lender
 
shall, on the date
 
upon
 
which the increase
 
takes effect,
 
pay
to the Facility
 
Agent (for its own account) a fee
 
of $2,000.
2.3
Extension Option
(a)
 
ABB may request that
 
the Termination Date be extended
 
subject to the terms
 
of
this Clause 2.3:
(i)
 
by giving written notice
 
to the Facility Agent not
 
less than 45 days and
not more than
 
90 days before
 
the date
 
which is
 
12 Months after the date of
 
this
Agreement
 
(the
 
"
First
 
Extension
 
Request
")
 
requesting
 
that
 
the
 
Termination
Date shall be
 
the date which is
 
72 Months after the
 
date of this Agreement
 
(the
"
First Extension Termination Date
"); and/or
(ii)
 
by giving written notice
 
to the Facility Agent not less
 
than 45 days and not more
than 90 days
 
before the date
 
which is 24
 
Months after
 
the date of this Agreement
(the
 
"
Second
 
Extension
 
Request
")
 
requesting
 
that the Termination
 
Date shall
be the date
 
which
 
is 84
 
Months after the
 
date of this Agreement.
(b)
 
The
 
Facility
 
Agent
 
shall
 
promptly
 
notify
 
each
 
Lender
 
of
 
any
 
Extension
 
Request
(including, in
 
the case
 
of a
 
Second Extension
 
Request, any
 
Lender that refused
 
a First
Extension Request).
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(c)
 
Each
 
Lender
 
(including, in
 
the
 
case
 
of
 
a
 
Second Extension
 
Request,
 
any
 
Lender that
refused
 
a
 
First
 
Extension
 
Request)
 
shall
 
notify
 
the
 
Facility
 
Agent
 
of
 
its decision
(which shall be in its sole discretion) in
 
respect of
 
whether
 
or not to
 
agree to
 
an Extension
Request not later than 20 days
 
before the date which is:
(i)
 
in respect
 
of a
 
First
 
Extension Request,
 
the date
 
which
 
is 12
 
Months after
 
the
 
date
of
 
this
 
Agreement
 
(and,
 
if
 
any
 
Lender
 
has
 
not
 
notified
 
the Facility Agent
 
of
its
 
acceptance of
 
the
 
First Extension
 
Request on
 
or
 
before such
 
date, it shall
 
be
deemed to
 
have refused
 
such First Extension
 
Request); or
(ii)
 
in respect of a Second Extension Request, the date which is 24 Months after the
date of this Agreement (and, if any Lender has not notified
 
the Facility Agent of
its acceptance of
 
the Second Extension Request
 
on or before
 
such
 
date,
 
it
 
shall
be
 
deemed
 
to
 
have
 
refused
 
such
 
Second Extension
 
Request),
and
 
the
 
Facility
 
Agent
 
shall
 
notify
 
ABB
 
of
 
whether
 
or
 
not each
 
Lender
 
has
 
agreed to
the relevant Extension
 
Request promptly,
 
and in any case no later than
 
5
 
Business
 
Days
after (A)
 
receipt by
 
it of
 
a notification
 
from a
 
Lender as
 
to
 
whether or not it has agreed
to
 
the
 
relevant
 
Extension
 
Request
 
and/or
 
(B)
 
the
 
deemed
 
refusal
 
of
 
a
 
Lender
 
to
 
an
Extension Request (as applicable).
(d)
 
With
 
effect
 
from the
 
date on
 
which ABB
 
receives notification
 
from the
 
Facility Agent
pursuant to paragraph (c)
 
above,
 
the Termination
 
Date shall be extended in
 
relation
 
to
 
the
 
Commitments
 
and/or
 
Swingline
 
Commitments
 
of
 
those Lender(s) who
 
have
agreed to the relevant Extension Request.
(e)
 
If a Lender
 
agrees to
 
an Extension
 
Request, the
 
agreement of
 
such Lender
 
shall
 
be deemed
to include the agreement of
 
its Revolving Facility Affiliate and
 
its Swingline Affiliate.
 
(f)
 
If a Lender refuses an Extension Request
 
and ABB exercises its right to either:
 
(i)
 
replace
 
such
 
refusing
 
Lender
 
pursuant
 
to
 
Clause 8.7
 
(
Right
 
of
 
 
replacement
 
or
 
repayment
 
and
 
cancellation
 
in
 
relation
 
to
 
a
 
single
 
 
Lender
); or
(ii)
 
increase
 
the
 
Total
 
Commitments
 
following
 
the
 
cancellation
 
of
 
such
refusing Lender's
 
Commitments and/or
 
Swingline Commitments,
 
in an amount
equal
 
to
 
the
 
Commitments
 
and/or
 
Swingline
 
Commitments
 
so
 
cancelled,
pursuant to Clause 2.2 (
Increase of Commitments
),
the relevant New Lender or Increase Lender (as
 
applicable) shall be deemed
 
to have
consented to the Extension Request that was
 
the subject of the refusal.
2.4
Finance Parties' rights and obligations
(a)
 
The obligations
 
of each
 
Finance Party
 
under the
 
Finance Documents
 
are several.
Failure
 
by
 
a
 
Finance
 
Party
 
to
 
perform
 
its
 
obligations
 
under
 
the
 
Finance
Documents does not affect the obligations of
 
any other Party under
 
the Finance
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Documents.
 
No Finance
 
Party is
 
responsible for the
 
obligations of any
 
other Finance
Party under the Finance Documents.
(b)
 
The
 
rights
 
of
 
eac
h
Finance
 
Part
y
under
 
or
 
in
 
connection with
 
the
 
Finance
 
Documents
are separate and
 
independent rights and
 
any debt arising
 
under the Finance Documents
 
to
a Finance
 
Party from any
 
of the Obligors is
 
a separate and
 
independent
 
debt
 
in
 
respect
of
 
which
 
a
 
Finance
 
Party
 
shall
 
be
 
entitled
 
to
 
enforce
 
its
 
rights
 
in
 
accordance
 
with
paragrap
h
(c
)
below.
 
The
 
rights
 
of
 
each Finance Party include
 
any debt
 
owing to
 
that
Finance Party under the
 
Finance Documents
 
and, for the avoidance of
 
doubt, any part of
an Advance
 
or any other amount owed by an
 
Obligor which relates
 
to a Finance
 
Party's
participation in
 
the
 
Facility or
 
its role
 
under a
 
Finance Document
 
(including any
 
such
amount payable to
 
the Agent
 
on its behalf) is
 
a debt owing
 
to that Finance Party by that
Obligor.
 
(c)
 
A Finance Party
 
may, except as specifically
 
provided in
 
the Finance Documents,
separately enforce
 
its rights
 
under or
 
in connection
 
with the
 
Finance Documents. 2.5
Facility Offices
(a)
 
Subject to
 
paragraph
 
(b) below, a
 
Lender may
 
(i) change
 
its Facility
 
Office for
 
the purpose
of
 
this
 
Agreement and/or
 
(ii)
 
nominate
 
a
 
different
 
Facility
 
Office for
 
the
 
purposes
 
of
making a
 
particular Advance
 
or particular
 
type
 
of Advance to
 
any Borrower,
 
in which
event such Facility Office shall for the purposes of this Agreement be its
 
Facility Office
for that Advance or that type of Advance but not otherwise.
(b)
 
If a
 
Lender changes
 
its Facility
 
Office or
 
nominates a
 
different Facility
 
Office, (i)
 
that
Lender
 
will
 
notify
 
the
 
Facility
 
Agent and
 
ABB
 
promptly (and, in
 
any event,
 
within
 
5
 
Business
 
Days)
 
of
 
such
 
change
 
or,
 
as
 
the
 
case
 
may
 
be, nomination, and until it
does so, the Facility
 
Agent and ABB
 
will be entitled
 
to assume
 
that
 
no
 
such
 
change
 
has
taken
 
place
 
and
 
(ii)
 
if
 
the
 
country
 
of
 
such
 
Facility Office
 
is not
 
subject to
 
the Financial
Action Task Force
 
any such
 
change
 
or, as the case may be, nomination shall be subject
 
to
the prior written consent
 
of the Facility Agent.
2.6
Borrowers' right and obligations hereunder
 
(a)
 
Each
 
Borrower
 
by
 
its
 
execution
 
of
 
this
 
Agreement
 
or
 
a
 
Borrower
 
Accession
Letter irrevocably appoints
 
ABB to
 
act on
 
its behalf
 
as its agent
 
in relation
 
to the
 
Finance
 
Documents
 
(in
 
this
 
capacity,
 
the
 
"
Borrowers' Agent
")
 
and irrevocably
 
authorises
 
(i)
 
ABB
 
on
 
its
 
behalf
 
to
 
supply
 
all
 
information concerning
 
itself contemplated
 
by
this Agreement to the Finance Parties and to give
 
all notices and
 
instructions (including
Utilisation Requests),
 
to execute
 
on its
 
behalf any
 
Borrower Accession
 
Letter and
 
to make
such agreements capable of being given
 
or made by
 
any Borrower notwithstanding that
they may
 
affect such
 
Borrower,
 
without
 
further
 
reference
 
to
 
or
 
the
 
consent
 
of
 
such
Borrower
 
and (ii) each Finance
 
Party to give any
 
notice, demand or
 
other communication
to such Borrower
 
pursuant to the Finance Documents to ABB on its behalf, and in
 
each
case such Borrower
 
shall be bound
 
thereby as though
 
such Borrower
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itself had given
 
such notices
 
and instructions
 
(including, without
 
limitation, any
Utilisation Requests)
 
or executed
 
or made
 
such agreements
 
or received
 
any such notice,
demand or other communication.
(b)
 
Every
 
act,
 
omission,
 
agreement,
 
undertaking,
 
settlement,
 
waiver,
 
notice
 
or
 
other
communication
 
given
 
or
 
made
 
by
 
the
 
Borrowers'
 
Agent
 
or
 
given
 
to
 
the
Borrowers' Agent under this
 
Agreement, or in
 
connection with this Agreement (whether
or
 
not
 
known
 
to
 
any
 
other
 
Borrower
 
and
 
whether
 
occurring
 
before
 
or
 
after
 
such
 
a
Borrower
 
became
 
a
 
Borrower
 
under
 
this
 
Agreement)
 
shall
 
be binding for
 
all
 
purposes
on
 
all
 
Borrowers
 
as
 
if
 
the
 
Borrowers
 
had
 
expressly made, given or concurred with the
same.
 
In the
 
event of
 
any
 
conflict between
 
any notices or other communications of the
Borrowers' Agent
 
and any
 
Borrower,
 
those of the Borrowers' Agent shall prevail.
 
(c)
 
The Borrowers' Agent may resign its appointment
 
hereunder by
 
giving not less
than ten Business Days'
 
prior written notice to
 
that effect to the Facility Agent,
provided
that
no such
 
resignation shall
 
be effective
 
until a
 
successor consents
 
in
 
writing to
 
the
Facility Agent to be appointed.
3.
PURPOSE
3.1
Purpose
Each Borrower shall
 
apply all amounts
 
borrowed by
 
it under the
 
Facility for the
 
general
 
corporate
purposes of the Group,
provided that
no Swingline Advance shall be used to refinance another
Swingline Advance.
3.2
Monitoring
No Finance Party
 
is bound
 
to monitor
 
or verify the
 
application of any
 
amount borrowed
 
pursuant
to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
(a)
 
No
 
Utilisation Request
 
may be
 
served unless the
 
Facility Agent
 
has received all of
 
the
documents and
 
other evidence
 
listed in
 
Part I
 
of
 
Schedule 2
 
(
Conditions
Precedent
) in
form and substance
 
reasonably satisfactory
 
to the Facility Agent.
 
(b)
 
The
 
Facility
 
Agent
 
shall
 
notify
 
ABB
 
and
 
the
 
Lenders
 
promptly
 
upon
 
the
conditions set out in paragraph
 
(a) of this Clause 4.1 being satisfied.
(c)
 
Other than to the extent that the Majority Lenders notify
 
the Facility
 
Agent in
writing
 
to
 
the
 
contrary
 
before
 
the
 
Facility
 
Agent
 
gives
 
the
 
notification
 
described
 
in
paragraph (b) above, the Lenders authorise
 
(but do not
 
require) the Facility
 
Agent to give
that notification.
 
The Facility
 
Agent shall not be liable for any damages, costs or losses
whatsoever as a result of giving any such notification.
 
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4.2
Further conditions precedent
(a)
 
The
 
Lenders
 
will
 
only
 
be
 
obliged
 
to
 
comply
 
with
 
Clause 5.4 (
Lenders'
participation
) and Clause 5.8
 
(
Swingline
 
Lenders' participation
) if on the date
 
of
 
the
 
Utilisation Request
 
and on
 
the
 
proposed Utilisation
 
Date (in each case other than
in the case of a Rollover Advance):
(i)
 
no Default is continuing or would result
 
from the proposed Advance;
(ii)
 
the
 
representations
 
to
 
be
 
made
 
by
 
ABB
 
pursuant
 
to
 
Clause
 
19.16
(
Repetition
) are true in all respects;
 
and
 
(iii)
 
such proposed Utilisation
 
Date is not within
 
30 days of ABB providing
notice
 
to
 
the
 
Facility
 
Agent
 
in
 
accordance
 
with
 
paragraph (a)
 
of
Clause 8.3 (
Mandatory Prepayment on Change of Control
).
(b)
 
An Advance will not be made if it would result in the
 
Base Currency Amount
of all Advances exceeding the Total Commitments.
4.3
Conditions relating to Optional Currencies
A
 
currency
 
will
 
constitute
 
an
 
Optional
 
Currency
 
in
 
relation
 
to
 
an
 
Advance
 
if
 
it
 
is Sterling
or
 
Euro,
 
or
 
it
 
is
 
readily
 
available
 
in
 
the
 
amount
 
required and
 
freely
 
convertible into
 
the
 
Base
Currency in the
 
wholesale market
 
for that currency
 
on the Quotation
 
Day
 
and the Utilisation Date
for that
 
Advance
 
and
 
there are
 
Reference Rate Terms
 
agreed for
 
that
 
currenc
y
provided
 
that
there
 
may
 
not
 
at
 
any
 
time
 
be
 
Advances
 
outstanding
 
denominated
 
in
 
more
 
than
 
5
 
Optional
Currencies.
4.4
Maximum number of Advances
 
(a)
 
No Borrower
 
may
 
deliver a
 
Utilisation Request if as a
 
result
 
of
 
the
 
proposed
Utilisation more than 10 Advances
 
would be outstanding.
 
(b)
 
Any
 
Advance made by
 
a single
 
Lender under Claus
e
6.2 (
Unavailability
 
of a
currency
) shall not be taken into account in
 
this Clause 4.4.
 
(c)
 
Any Separate Advance shall not be taken into account in
 
this Clause
 
4.4.
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SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of a Utilisation
 
Request
A Borrower may utilise the Facility
 
(other than for the purpose of drawing
 
Swingline
Advances, which may be drawn in
 
accordance with Clause
 
5.
5
(
Delivery of a
 
Utilisation
Request
for a
 
Swingline
 
Advance
)) by
 
delivery
 
to the
 
Facility
 
Agent
 
of a
 
duly
 
completed
 
Utilisation Request
not later than the Specified
 
Time.
5.2
Completion of a Utilisation Request
(a)
 
Each Utilisation Request delivered to the
 
Facility
 
Agent pursuant to Clause 5.1
(
Delivery of
 
a Utilisation
 
Request
)
 
is irrevocable and will
 
not
 
be regarded
 
as having
been duly completed unless:
 
(i)
 
the proposed Utilisation Date is a Business Day within
 
the Availability
Period;
 
(ii)
 
the
 
currency
 
and
 
amount
 
of
 
the
 
Utilisation
 
comply
 
with
 
Claus
e
5.3
(
Currency and amount
); and
(iii)
 
the proposed Interest
 
Period complies
 
with Clause
 
10 (
Interest Periods
).
(b)
 
Only
 
one Advance
 
may
 
be requested
 
in each
 
Utilisation Request delivered
 
to
the Facility Agent
 
pursuant to Clause 5.1 (
Delivery of a Utilisation
 
Request
).
 
5.3
Currency and amount
(a)
 
The currency specified in a
 
Utilisation Request delivered to the Facility
 
Agent pursuant
to Clause 5.1
 
(
Delivery of a Utilisation Request
) must, in the case of any
 
Advance
 
(not
being
 
a
 
Swingline
 
Advance),
 
be
 
the
 
Base
 
Currency
 
or
 
an Optional Currency.
(b)
 
The amount of the proposed Advance must be:
 
(i)
 
if the
 
currency
 
selected is
 
the Base
 
Currency, a minimum
 
of $50,000,000
and an integral multiple of $10,000,000; or
 
(ii)
 
if the currency
 
selected is Euro, a minimum of
 
Euro 50,000,000 and
 
an
integral multiple of Euro10,000,000; or
 
(iii)
 
if the currency selected is
 
Sterling,
 
a minimum amount
 
of £25,000,000
and an integral multiple of £5,000,000; or
 
(iv)
 
if
 
the
 
currency
 
selected
 
is
 
an
 
Optional
 
Currency
 
(other
 
than
 
Euro
 
or
Sterling), in such minimum amount
 
and multiple as the Facility Agent and ABB
may agree,
or, in any case, the amount of the Available Facility.
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5.4
Lenders' participation
 
(a)
 
If
 
the
 
conditions
 
set
 
out
 
in
 
this
 
Agreement
 
have
 
been
 
met,
 
and
 
subject
 
to
Clause 7.1 (
Repayment of Advances
), each Lender shall make its participation
 
in each
Advance available by the Utilisation Date through its Facility
 
Office.
(b)
 
Subject
 
to
 
Clause
 
6.
2
(
Unavailability
 
of
 
a
 
currency
),
 
the
 
amount
 
of
 
each Lender's
participation
 
in
 
each
 
Advance
 
(not
 
being a
 
Swingline
 
Advance)
 
will be equal
 
to
 
the
proportion
 
borne
 
by
 
its
 
Available
 
Commitment to
 
the
 
Available
 
Facility
 
immediately
prior to making the Advance.
(c)
 
The Facility Agent
 
shall determine the
 
Base
 
Currency Amount of
 
each Advance
 
which is
to be
 
made in
 
an Optional
 
Currency and
 
shall notify
 
each Lender
 
of the amount,
 
currency
and
 
the
 
Base
 
Currency
 
Amount
 
of
 
each
 
Advance,
 
the amount of its
 
participation
 
in
that Advance
 
and (if
 
different) the
 
amount of that participation
 
to be
 
made available
 
in
cash, in each case by the Specified Time.
5.5
Delivery of a Utilisation
 
Request for a Swingline Advance
 
The Borrowers may utilise
 
the Dollar Swingline
 
Facility or the
 
Euro
 
Swingline
 
Facility
by
 
delivery to
 
the relevant
 
Swingline Agent
 
(with a copy
 
to
 
the
 
Facility Agent)
 
of a duly
completed Utilisation Request not later than the
 
Specified Time.
5.6
Completion of a Utilisation Request for
 
a Swingline Advance
(a)
 
Each
 
Utilisation
 
Request
 
delivered
 
pursuant
 
to
 
Clause
 
5.5
 
(
Delivery
 
of
 
a
Utilisation
 
Request
 
for
 
a
 
Swingline
 
Advance
)
 
is
 
irrevocable
 
and
 
will
 
not
 
be
regarded as having been duly completed unless:
(i)
 
it specifies whether the Swingline Advance is to be a Dollar
 
Swingline
Advance or a Euro Swingline Advance;
(ii)
 
the proposed Utilisation Date is a Business Day within
 
the Availability
Period;
(iii)
 
the
 
currency
 
and
 
amount
 
of
 
the
 
Utilisation
 
compl
y
with
 
Claus
e
5.7
(
Currency and amount
); and
(iv)
 
the proposed Interest
 
Period complies
 
with Clause
 
10 (
Interest Periods
).
(b)
 
Only
 
one
 
Swingline
 
Advance
 
may
 
be
 
requested
 
in
 
each
 
Utilisation
 
Request
 
delivered
 
pursuant
 
to
 
Clause
 
5.
5
(
Delivery
 
of
 
a
 
Utilisation
 
Request
 
for
 
a
Swingline Advance
).
5.7
Currency and amount
(a)
 
The currency specified
 
in a Utilisation
 
Request delivered
 
pursuant to Clause
 
5.5
(
Delivery of a Utilisation Request
 
for a Swingline Advance
) must be Dollars (in
 
the
 
case
of
 
a
 
Dollar
 
Swingline
 
Advance)
 
or
 
Euro
 
(in
 
the
 
case
 
of
 
a
 
Euro
 
Swingline Advance).
(b)
 
The amount of the proposed Swingline Advance
 
must be:
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(i)
 
in the
 
case of
 
a Dollar
 
Swingline Advance, a
 
minimum of
 
$50,000,000 and an
integral
 
multiple
 
of
 
$10,000,000
 
or,
 
if
 
less,
 
the
 
Available
 
Dollar
 
Swingline
Facility; or
(ii)
 
in
 
the
 
case
 
of
 
a
 
Euro
 
Swingline
 
Advance,
 
a
 
minimum
 
of
 
Euro
 
50,000,000
and
 
an
 
integral
 
multiple
 
of
 
Euro
 
10,000,000
 
or,
 
if
 
less,
 
the
 
Available
 
Euro
Swingline Facility; or
(c)
 
The
 
amount of a
 
proposed Dollar
 
Swingline
 
Advance or,
 
as the
 
case may be, the Base
Currency
 
Amount of
 
a proposed
 
Euro
 
Swingline Advance
 
must not,
 
when aggregated
with the Base Currency Amount of all outstanding
 
Swingline Advances
 
outstanding
 
on
 
the
 
proposed
 
Utilisation
 
Date,
 
exceed
 
the
 
Total Swingline Facility
 
Amount.
5.8
Swingline Lenders'
 
participation
(a)
 
If the
 
conditions set
 
out in
 
this Agreement
 
have been
 
met, each
 
Dollar Swingline
Lender (in
 
the case
 
of a
 
Dollar Swingline
 
Advance) or
 
Euro Swingline
 
Lender (in
 
the
 
case
of
 
a
 
Euro
 
Swingline
 
Advance)
 
shall,
 
on
 
the
 
relevant
 
Utilisation
 
Date,
 
make its
 
participation
in each
 
Dollar Swingline
 
Advance or
 
Euro Swingline Advance
 
(as applicable)
 
available
through its Facility Office.
(b)
 
The amount of each Swingline Lender's participation in each Dollar Swingline Advance
or Euro Swingline Advance will be equal
 
to the proportion
 
borne by its Available Dollar
Swingline Commitment or, as
 
the case may be,
 
Available
 
Euro Swingline Commitment
to
 
the
 
Available
 
Dollar
 
Swingline
 
Facility
 
or,
 
as
 
the
 
case
 
may
 
be,
 
Available
 
Euro
Swingline Facility immediately prior t
o
making the
 
Dollar
 
Swingline
 
Advance or
 
Euro
Swingline Advance.
(c)
 
The
 
relevant
 
Swingline
 
Agent
 
shall
 
notify
 
each
 
relevant
 
Swingline
 
Lender
 
of
 
the
 
amount,
 
currency
 
and
 
the
 
Base
 
Currency
 
Amount
 
of
 
each
 
Swingline Advance at
the Specified Time.
6.
OPTIONAL CURRENCIES
6.1
Selection of currency
The relevant Borrower shall
 
select the currency
 
of an Advance
 
in a Utilisation
 
Request.
 
6.2
Unavailability of a currency
If before the Specified Time on any Quotation
 
Day:
 
(a)
 
the Facility Agent
 
has received notice
 
from a Lender
 
that the Optional
 
Currency
(other than
 
Euro or
 
Sterling) requested
 
is not
 
readily
 
available to
 
it in
 
the
 
amount
 
required;
or
(b)
 
a
 
Lender
 
notifies
 
the
 
Facility
 
Agent
 
that
 
compliance
 
with
 
its
 
obligation
 
to
 
participate
in an
 
Advance in
 
the proposed
 
Optional Currency
 
(other than
 
Euro or
 
Sterling) would
contravene a law or regulation applicable
 
to it,
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the
 
Facility
 
Agent
 
will
 
give
 
notice
 
to
 
the
 
relevant
 
Borrower
 
to
 
that
 
effect
 
by
 
the
 
Specified
Time on that day.
 
In this event, any Lender that gives notice pursuant to this Clause
 
6.2 will
 
be
required to participate in the Advance in the Base Currency (in an amount equal to that Lender's
proportion of
 
the Base
 
Currency Amount
 
or,
 
in respect
 
of
 
a
 
Rollover
 
Advance,
 
an
 
amount
equal
 
to
 
that
 
Lender's
 
proportion
 
of
 
the
 
Base
 
Currency
 
Amount of
 
the maturing
 
Advance that
is due
 
to be
 
repaid) and
 
its participation
 
will be
 
treated as a separate
 
Advance denominated in
 
the
Base Currency
 
during that Interest Period.
6.3
Notification
The
 
Facility
 
Agent
 
shall
 
notify
 
the
 
Lenders
 
and
 
the
 
relevant
 
Borrower
 
of
 
Optional
 
Currency
 
amounts
 
(and
 
the
 
applicable
 
Facility
 
Agent's
 
Spot
 
Rate
 
of
 
Exchange) promptly after they
are ascertained.
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SECTION 4
REPAYM
 
ENT, PREPAYM
 
ENT AND CANCELLATION
7.
REPAYMENT
7.1
Repayment of Advances
 
(a)
 
Each Borrower
 
shall repay
 
each Advance
 
made to
 
it on
 
the last
 
day of
 
its Interest
Period.
(b)
 
All Advances must be repaid in full on the Termination Date.
(c)
 
At any
 
time when a
 
Lender becomes a
 
Defaulting Lender,
 
the maturity
 
date of
 
each of
the participations of that Lender (and,
 
if that Defaulting
 
Lender is the Revolving Facility
Affiliate
 
of
 
a
 
Swingline
 
Lender,
 
of
 
that
 
Swingline
 
Lender) in
 
the
 
Advances
 
then
 
outstanding
 
will
 
be
 
automatically
 
extended
 
to
 
the Termination
 
Date
 
and
 
will
 
be
treated
 
as
 
separate
 
Advances
 
(the
 
"
Separate
Advances
") denominated i
n
the currency
in
 
which the
 
relevant participations
 
are outstanding.
(d)
 
A
 
Borrower
 
to
 
whom
 
a
 
Separate
 
Advance
 
is
 
outstanding
 
may
 
prepay
 
that
 
Advance
by
 
giving
 
5
 
Business
 
Days'
 
prior
 
notice
 
to
 
the
 
Facility
 
Agent.
 
The Facility
 
Agent
 
will
 
forward
 
a
 
copy
 
of
 
a
 
prepayment
 
notice
 
received
 
in accordance
 
with this
paragraph (d) to the relevant Lender
 
concerned as soon
 
as practicable on receipt.
(e)
 
Interest
 
in
 
respect
 
of
 
a
 
Separate
 
Advance
 
will
 
accrue
 
for
 
successive
 
Interest Periods
selected
 
by
 
the
 
Borrower by
 
the
 
time
 
and
 
date specified
 
by the
 
Facility Agent
 
(acting
reasonably) and will be
 
payable by that Borrower
 
to the relevant Lender on
 
the
 
last
 
day
of
 
each
 
Interest
 
Period
 
in
 
respect
 
of
 
that
 
Advance. Notwithstanding
 
Clause
 
9.3
(
Calculation
 
of
 
interest
 
–
 
Swingline
 
Advance
),
 
the
 
rate
 
of
 
interest
 
in
 
respect
 
of
 
any
Swingline
 
Advance
 
that
 
becomes
 
a
 
Separate Advance in accordance
 
with this
 
Clause
7.1
 
shall
 
be calculated
 
in
 
accordance
 
with
 
Clause
 
9.1 (
Calculation of
 
interest
 
–
 
Term
Rate Advance
) and Clause 9.2 (
Calculation
 
o
f
interes
t
–
 
Compounded
 
Rate
 
Advance
)
(as
 
applicable
)
with
 
effect
 
from
 
the
 
end
 
of
 
the
 
Interest
 
Period
 
during
 
which
 
such
Swingline Advance
 
becomes
 
a Separate Advance.
(f)
 
The terms
 
of this Agreement relating to the Facility generally
 
shall continue
 
to apply
 
to
 
Separate
 
Advances
 
other
 
than
 
to
 
the
 
extent
 
inconsistent
 
with paragraph
s
(c
)
t
o
(e
)
above,
 
in
 
which
 
case
 
those
 
paragraphs
 
shall
 
prevail
 
in respect of
 
any Separate
Advance.
(g)
 
If one or more Advances
 
are to be made available to a Borrower:
 
(i)
 
on
 
the
 
same
 
day
 
that
 
a
 
maturing Advance
 
is
 
due
 
to
 
be
 
repaid
 
by
 
that
Borrower;
 
(ii)
 
in the same currency as the maturing Advance (unless
 
the currency of
the
 
maturing
 
Advance
 
was
 
determined
 
pursuant
 
to
 
the
 
operation
 
of Clause
6.2 (
Unavailability
 
of a currency
)); and
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70-41048667
(iii)
 
in
 
whole
 
or
 
in
 
part
 
for
 
the
 
purpose
 
of
 
refinancing
 
the
 
maturing
 
Advance;
 
the
aggregate amount
 
of the
 
new Advance shall
 
be treated
 
as if applied
 
in or towards
repayment of the maturing Advance so that:
(A)
 
if
 
the
 
amount
 
of
 
the
 
maturing
 
Advance
 
exceeds
 
the
 
aggregate
amount of the new Advance:
(1)
 
the
 
relevant
 
Borrower
 
will
 
only
 
be
 
required
 
to
 
pay
 
an
amount
 
in
 
cash
 
in
 
the
 
relevant
 
currency
 
equal
 
to
 
that
excess; and
(2)
 
each Lender's
 
participation (if any)
 
in the
 
new Advance
 
shall
 
be
 
treated
 
as
 
having
 
been
 
made
 
available
 
and applied by the
Borrower in or towards
 
repayment of that Lender's
 
participation
(if
 
any) in the
 
maturing
 
Advance
 
and
 
that
 
Lender
 
will
 
not
 
be
 
required
 
to
 
make
 
its participation in
 
the new
 
Advance
available in cash; and
 
(B)
 
if
 
the amount of the
 
maturing Advance is
 
equal
 
to or less than
the aggregate amount of the new
 
Advance:
 
(1)
 
the relevant Borrower will not be required to make
 
any
payment in cash; and
 
(2)
 
each Lender will be required
 
to make its participation
 
in
the
 
new
 
Advance
 
available
 
in
 
cash
 
only
 
to
 
the
 
extent that
 
its
participation (if any)
 
in the new Advance
 
exceeds that Lender's
participation
 
(if
 
any)
 
in
 
the
 
maturing
 
Advance
 
and
 
the
remainder
 
of
 
that
 
Lender's
 
participation
 
in
 
the new
 
Advance
 
shall
 
be
 
treated
 
as
 
having
 
been
 
made available
 
and
 
applied
by
 
the
 
Borrower
 
in
 
or
 
towards repayment
 
of
 
that Lender's
participation
 
in the maturing
 
Advance.
8.
PREPAYMEN
 
T
 
AND CANCELLATION
8.1
Lender Illegality
If
 
it
 
becomes
 
unlawful
 
in
 
any
 
jurisdiction
 
for
 
a
 
Lender
 
to
 
perform
 
any
 
of
 
its
 
obligations as
contemplated
 
by
 
this
 
Agreement
 
or
 
to
 
fun
d
or
 
maintai
n
its
 
participation
 
in
 
any
 
Advance:
 
(a)
 
that Lender shall promptly notify the Facility
 
Agent upon becoming aware of
that event;
(b)
 
unless
 
the
 
repayment
 
referred
 
to
 
in
 
paragraph
 
(c)
 
below
 
avoids
 
such
unlawfulness,
 
upon
 
the
 
Facility
 
Agent
 
notifying
 
ABB,
 
the
 
Commitment
 
and/or
 
the
relevant Swingline Commitment of
 
that Lender and/or its Revolving
 
Facility Affiliate or
its Swingline Affiliate will be immediately cancelled; and
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(c)
 
each
 
Borrower
 
shall,
 
to
 
the
 
extent
 
necessary
 
to
 
avoid
 
such
 
unlawfulness,
 
repay
 
that
Lender's and/or its Revolving
 
Facility Affiliate's or its Swingline Affiliate's
 
participation
in
 
the
 
Advances
 
made
 
to
 
it
 
on
 
the
 
last
 
day
 
of
 
the
 
Interest
 
Period
 
for
 
each
 
Advance
occurring
 
after
 
the
 
Facility
 
Agent
 
has
 
notified
 
ABB
 
or,
 
if earlier, the date
 
specified by
the Lender in the notice delivered to the Facility Agent (being no earlier than 5 Business
Days after receipt of such notice or, if earlier, the last day of any applicable grace period
permitted by law).
8.2
Borrower Illegality
 
If it is or becomes
 
unlawful
 
for a Borrower to
 
perform any of its
 
obligations under the
Finance
 
Documents,
 
save
 
where
 
such
 
obligations
 
are
 
not,
 
or
 
could
 
reasonably
 
be
 
considered
not
 
to
 
be,
 
material
 
to
 
the
 
interests
 
of
 
the
 
Lenders
 
under
 
the
 
Finance Documents, that
Borrower shall within 15
 
Business Days
 
of being served with
 
notice by the Facility
 
Agent so to
do, repay all
 
Advances owing by it,
 
together with accrued
 
interest and all
 
other amounts owing
by it under the Finance Documents.
8.3
Mandatory Prepayment on Change
 
of Control
 
If
 
any
 
person
 
(whether
 
alone
 
or
 
together
 
with
 
any
 
associated
 
person)
 
becomes
 
the
beneficial owner of shares in the issued share capital of
 
ABB carrying the right
 
to more
 
than 50
per cent. of the votes exercisable at a general
 
meeting of ABB:
 
(a)
 
ABB
 
shall
 
promptly
 
notify
 
the
 
Facility
 
Agent
 
upon
 
becoming
 
aware
 
of
 
that
event; and
 
(b)
 
if within
 
15 days following such notification to the Facility
 
Agent any Lender
so requests
 
(by delivering
 
a notice
 
to ABB
 
through the
 
Facility Agent),
 
each
 
Borrower
shall,
 
no
 
later
 
than
 
15
 
days
 
following
 
such
 
request,
 
prepay
 
that
 
Lender's
 
portion
 
of
all
 
outstanding
 
Advances,
 
together
 
with
 
accrued
 
interest
 
thereon and all other amounts
owing to such
 
Lender hereunder
 
and cancel
 
that Lender's
 
Commitments and/or
 
Swingline
Commitments.
For
 
the
 
purposes
 
of
 
this
 
Claus
e
8.3,
 
"
associated
 
person
"
 
means,
 
in
 
relation
 
to
 
any
 
person,
 
a
person
 
who
 
is
 
(i)
 
"
acting
 
in
 
concert
"
 
(as
 
defined
 
in
 
the
 
City
 
Code
 
on Takeovers
 
and
Mergers) with that person or (ii) a "
connected person
" (as defined
 
in section 839 of the Income
and Corporation
 
Taxes
 
Act 1988) of that person.
8.4
Mandatory Prepayment on Sanctions
 
Misrepresentation or Anti-Bribery and
Corruption Misrepresentation
 
(a)
 
Upon
 
ABB
 
becoming
 
aware
 
of
 
a
 
Sanctions
 
Misrepresentation
 
or
 
a
n
Anti-
Bribery and Corruption Misrepresentation:
 
(i)
 
ABB
 
shall
 
promptly
 
notify
 
the
 
Facility
 
Agent,
 
which
 
shall
 
promptly
notify each Lender; and
 
(ii)
 
if
 
within 15
 
Business Days
 
following
 
such notification
 
to
 
the
 
Facility
Agent any Lender
 
so requests
 
(by delivering
 
a notice
 
to ABB
 
through the
 
Facility
Agent), each Borrower shall
 
within 15 Business Days of
 
any such
 
request
 
(or
earlier
 
to
 
the
 
extent
 
required
 
by
 
applicable
 
law
 
or regulation)
 
prepa
y
that
Lender's
 
portion
 
of
 
all
 
outstanding
 
Advances,
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together
 
with
 
accrued interest
 
thereon
 
and
 
all
 
other
 
amounts
 
owing
 
to such
Lender
 
hereunder,
 
and
 
cancel
 
that
 
Lender's
 
Commitments
 
and/or Swingline
Commitments.
(b)
 
For the purpose of this Clause 8.4:
(i)
 
a
 
"
Sanctions
 
Misrepresentation
"
 
means
 
any
 
statement
 
or
representation made or deemed
 
(by virtue of Clause
 
19.16 (
Repetition
)) to have
been made
 
by any
 
Obligor pursuant
 
to Clause
 
19.14 (
Sanctions
)
 
being or
 
proving
to have
 
been incorrect
 
or misleading when
 
made or deemed
 
to have been
 
made;
and
(ii)
 
an
 
"
Anti-Bribery
 
and
 
Corruption
 
Misrepresentation
"
 
mean
s
any
 
statement
or
 
representation made
 
or deemed
 
(by
 
virtue of
 
Clause
 
19.16 (
Repetition
))
 
to
have
 
been
 
made
 
by
 
any
 
Obligor
 
pursuant
 
t
o
Clause 19.15 (
Anti-corruption
and anti-bribery laws
 
and regulations
)
 
being or proving to
 
have been incorrect
or misleading when made or
 
deemed to have been made.
8.5
Voluntary cancellation
 
ABB may, if it gives the Facility Agent not less than 5 Business Days'
 
(or such shorter
period as
 
the Majority
 
Lenders may
 
agree)
 
prior notice,
 
cancel the
 
whole or
 
any part
 
(being a
minimum
 
amount
 
of
 
$25,000,000
 
and
 
an
 
integral
 
multiple
 
of
 
$10,000,000)
 
of the
 
Available
Facility,
 
the Available
 
Dollar Swingline Facility or the Available
 
Euro
 
Swingline Facility.
 
Any
cancellation under this Claus
e
8.
5
shall reduce
 
rateably
 
the Commitments of the Lenders or the
relevant Swingline Commitments of the relevant Swingline Lenders.
8.6
Voluntary Prepayment
 
(a)
 
Subject to
 
paragraph (b)
 
and
 
(c) below,
a
Borrower may
 
prepay the whole
 
or
any part of an Advance made to it (but if in part, being an amount that
 
reduces the
 
Base
 
Currency
 
Amount
 
of
 
the
 
Advance
 
by
 
a
 
minimum
 
amount
 
of $25,000,000
 
and
 
rounded
 
as
 
the
 
Facility
 
Agent
 
may
 
reasonably
 
require)
provided that
:
 
(i)
 
in the case of any Advance other than a
 
Swingline Advance, it gives the
Facility Agent not less than 5 Business
 
Days' prior notice; and
(ii)
 
in the case
 
of any Swingline
 
Advance it gives
 
the Facility Agent
 
not less
than 1 Business Day's prior notice.
 
(b)
 
Subject
 
to
 
paragraph
 
(c)
 
below,
a
Borrower
 
shall
 
not
 
make
 
more
 
than
 
six
prepayments in respect of
 
Compounded
 
Rate Advances
 
under this Clause 8.6
 
in any
calendar year.
(c)
 
A Borrower may
 
make more prepayments
 
than permitted under
 
paragraph (b) above
 
in
any
 
calendar
 
yea
r
provided
 
tha
t
such Borrower
 
shall
 
pa
y
a
 
fe
e
for each additional
prepayment to be paid
 
at the time of
 
each such prepayment
 
in the
 
amoun
t
of $2,00
0
or
such
 
lower
 
amount
 
as
 
agreed
 
betwee
n
ABB
 
and
 
the Agent
 
from time
 
to time
 
and as
documented in a side
 
letter.
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8.7
Right of replacement or repayment and cancellation in relation
 
to a single
Lender
(a)
 
If:
(i)
 
any sum payable to any Lender
 
by ABB or a Borrower
 
is required
 
to be
increased under paragraph (c) of Clause
 
13.2 (
Tax gross-up
);
(ii)
 
any
 
Lender
 
claims
 
indemnification
 
from
 
ABB
 
or
 
a
 
Borrower
 
under
Clause 13.3 (
Tax indemnity
) or Clause 14.1 (
Increased costs
); or
(iii)
 
any
 
Lender
 
refuses
 
(or
 
is
 
deemed
 
to
 
have
 
refused)
 
its
 
consent
 
to
 
an
Extension Request,
then ABB may:
(A)
 
in
 
the
 
case
 
of
 
paragraphs
 
(i)
 
and
 
(ii)
 
above,
 
whilst
 
the
circumstance
 
giving
 
rise
 
to
 
the
 
requirement
 
for
 
that
 
increase
 
or
indemnification continues; and
(B)
 
in
 
the
 
case
 
of
 
paragraph
 
(iii)
 
above,
 
at
 
any
 
time
 
after
 
the
 
refusal
 
(or
deemed refusal) of
 
the relevant
 
Extension Request (but
 
in the case
 
of a
refusal
 
(or
 
deemed
 
refusal)
 
of
 
a
 
First
 
Extension
 
Request
 
not from the date,
if
 
any,
 
that
 
such Lender
 
agrees to
 
a
 
Second
 
Extension Request),
give the
 
Facility Agent notice of
 
cancellation of the Commitment and/or
 
any Swingline
Commitment of that
 
Lender and/or of its
 
Revolving Facility Affiliate or
 
its
 
Swingline
Affiliate
 
and
 
its
 
intention
 
to
 
procure
 
the
 
repayment
 
of
 
the participation
 
in
 
the
Advances
 
of
 
that
 
Lender
 
and/or
 
of
 
its
 
Revolving
 
Facility Affiliate
 
or
 
its
 
Swingline
Affiliate
 
or
 
give
 
the
 
Facility
 
Agent
 
notice
 
of
 
its intention
 
to
 
replace
 
that
 
Lender
and/or
 
its
 
Revolving
 
Facility
 
Affiliate
 
or
 
its Swingline
 
Affiliate
 
in accordance
 
with
paragraph (d) below.
(b)
 
On
 
receipt
 
of
 
a
 
notice
 
of
 
cancellation
 
referred
 
to
 
in
 
paragrap
h
(a
)
above,
 
the
Commitment
 
and/or
 
the
 
relevant Swingline
 
Commitment
 
of
 
the relevant
 
Lender
 
and/or
 
its
 
Revolving
 
Facility
 
Affiliate
 
or
 
its
 
Swingline
 
Affiliate
 
shall immediately be
reduced to zero.
(c)
 
On
 
the
 
last
 
day
 
of
 
each
 
Interest
 
Period
 
in
 
respect
 
of
 
an
 
Advance
 
which
 
ends after
ABB has
 
given notice
 
of
 
cancellation under
 
paragrap
h
(a
)
above (or, if earlier, the
 
date
specified by
 
ABB in
 
that notice),
 
each Borrower
 
to whom
 
an Advance
 
is outstanding
 
shall
repay that Lender's participation in
 
that Advance.
(d)
 
ABB may, in the circumstances set out
 
in paragrap
h
(a) above,
 
on 5 Business
 
Days' prior
notice
 
to
 
the
 
Facility
 
Agent
 
and
 
that
 
Lender
 
replace
 
that Lender
 
(and any
 
Revolving
Facility
 
Affiliate
 
or
 
Swingline
 
Affiliate
 
of
 
that
 
Lender)
 
by requiring
 
such
 
Lender
and/or
 
its
 
Revolving
 
Facility
 
Affiliate
 
or
 
Swingline
 
Affiliate
 
to
 
(and,
 
to
 
the
 
extent
permitted
 
by
 
law,
 
that
 
Lender
 
or
 
Revolving Facility Affiliate
 
or
 
Swingline
 
Affiliate
shall) transfer
 
pursuant to
 
Claus
e
23
 
(
Changes to the
 
Lenders
) all (and,
 
save as provided
for in this paragraph, not part only)
 
of its
 
rights and
 
obligations under
 
this Agreement
 
to a
Lender or
 
other
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bank
 
selected
 
by
 
ABB
 
which
 
confirms
 
its
 
willingness
 
to
 
assume
 
and
 
does assume
 
all
 
the
 
obligations
 
of
 
the
 
transferring
 
Lender
 
in
 
accordance
 
with Clause
 
23 (
Changes
to the Lenders
) for a purchase
 
price in cash payable
 
at the
 
time of the
 
transfer equal to
 
the
outstanding
 
principal
 
amount
 
of
 
such
 
Lender's or
 
Revolving
 
Facility
 
Affiliate's
 
or
Swingline Affiliate's
 
participation
 
in
 
the
 
outstanding Advances
 
and all
 
accrued interest
(to the
 
extent that
 
the Facility Agent
 
has
 
not
 
given
 
a
 
notification
 
under
 
Clause 23.10
(
Pro
 
rata
 
interest
settlement
)), Break
 
Costs
 
and other
 
amounts payable
 
in relation
 
thereto
under the
 
Finance
 
Documents.
 
Where
 
a
 
Lender
 
to
 
be
 
replaced
 
pursuant
 
to
 
this
paragraph
 
is
 
a
 
Swingline
 
Lender
 
that
 
is
 
the
 
Swingline
 
Affiliate
 
of
 
another
 
Lender,
the
 
rights
 
and
 
obligations
 
required
 
to
 
be
 
transferred
 
pursuant
 
to
 
this Clause by that
other Lender in its capacity as the
 
Revolving Facility
 
Affiliate of that Swingline Lender
may,
 
at
 
the option
 
of
 
ABB, be
 
limited
 
to
 
those
 
necessary for
 
the
 
Commitments of
 
the
replacement Lender
 
(or its
 
Affiliate) to
 
be at
 
least equal
 
to
 
each
 
of
 
the
 
Swingline
 
Commitments
 
to
 
be
 
transferred
 
to
 
such
 
replacement Lender pursuant to this Clause.
(e)
 
The replacement of any
 
Lender pursuant to
 
paragraph (d) above
 
shall be
 
subject
to the following conditions:
(i)
 
ABB shall have no right to replace an
 
Agent;
 
(ii)
 
no Agent nor
 
any Lender shall
 
have any obligation
 
to find a
 
replacement
Lender;
 
(iii)
 
in
 
no
 
event
 
shall
 
any
 
Lender
 
replaced
 
under
 
paragrap
h
(d
)
above
 
be
required
 
to
 
pay
 
or
 
surrender any
 
of
 
the fees
 
received
 
by
 
such
 
Lender
pursuant to the Finance
 
Documents; and
(iv)
 
the
 
Lender shall
 
only
 
be obliged
 
to
 
transfer its
 
rights
 
and
 
obligations
 
pursuant
to paragraph (d) above
 
once it
 
is satisfied (acting
 
reasonably)
 
that it has
 
complied
with
 
all
 
necessary
 
“know
 
your
 
customer”
 
or
 
other
 
similar
 
checks
 
under
 
all
applicable law
s
and regulations in relation
 
to that transfer.
(f)
(i)
 
If
 
any
 
Lender
 
becomes
 
a
 
Defaulting
 
Lender,
 
ABB
 
may,
 
at
 
any
 
time whilst
that
 
Lender
 
continues
 
to
 
be
 
a
 
Defaulting
 
Lender,
 
give
 
the
 
Facility Agent
 
5
 
Business
 
Days'
 
notice
 
of
 
cancellation
 
of
 
the
 
Available Commitment,
Available
 
Dollar
 
Swingline
 
Commitment
 
or
 
Available
 
Euro
 
Swingline
 
Commitment
 
of
 
that
 
Lender
 
and/or
 
its
 
Revolving Facility
 
Affiliate
 
or
Swingline Affiliate.
(ii)
 
On the
 
notice referred
 
to in
 
paragraph (i)
 
above becoming
 
effective, the
 
Available
Commitment
,
Available
 
Dollar
 
Swingline
 
Commitment
 
or Available
 
Euro
Swingline
 
Commitment
 
(as
 
applicable)
 
of
 
the
 
relevant
 
Lender
 
and/or
 
its
Revolving
 
Facility
 
Affiliate
 
or
 
Swingline
 
Affiliate
 
shall
 
immediately
 
be
reduced to zero.
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(iii)
 
The Facility Agent shall as soon
 
as practicable after receipt of a
 
notice
referred to in paragraph (i) above, notify
 
all the Lenders.
8.8
Restrictions
(a)
 
Any notice of cancellation
 
or prepayment given
 
by any
 
Party under this
 
Clause 8 shall be
irrevocable and,
 
unless
 
a contrary
 
indication appears
 
in this
 
Agreement,
 
shall
 
specify
 
the
 
date
 
or
 
dates
 
upon
 
which
 
the
 
relevant
 
cancellation
 
or prepayment is to be made
and the amount of that
 
cancellation or prepayment.
(b)
 
Any
 
prepayment
 
under
 
this
 
Agreement
 
shall
 
be
 
made
 
together
 
with
 
accrued
 
interest
 
on
 
the
 
amount
 
prepaid
 
and,
 
subject
 
to
 
any
 
Break
 
Costs,
 
without
 
premium or
 
penalty.
(c)
 
Unless a contrary indication appears in this Agreement,
 
any part of the Facility
 
which
 
is
prepaid
 
may
 
be
 
reborrowed
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
this Agreement.
 
Any
part of the Facility
 
that is repaid may be reborrowed.
(d)
 
No Borrower shall
 
repay or
 
prepay all or
 
any part of
 
the Advances or
 
cancel all or
 
any
part
 
of the
 
Commitments or
 
any
 
Swingline
 
Commitment
 
except at
 
the times and in the
manner expressly provided
 
for in this Agreement.
(e)
 
Subject
 
to
 
Claus
e
2.
2
(
Increase
 
of
 
Commitments
),
 
no
 
amount
 
of
 
the
 
Total
Commitments or
 
any Swingline
 
Commitment cancelled
 
under this
 
Agreement may
 
be
subsequently reinstated.
(f)
 
If
 
the
 
Facility
 
Agent
 
receives
 
a
 
notice
 
under
 
this
 
Claus
e
 
8
it
 
shall
 
promptly
 
forward
a
 
copy
 
of
 
that
 
notice
 
to
 
ABB
 
and
 
the
 
affected
 
Borrower
 
or
 
the
 
affected
 
Lender,
 
as
appropriate.
(g)
 
Any
 
cancellation
 
of
 
a
 
Swingline
 
Commitment
 
of
 
a
 
Swingline
 
Lender
 
shall reduce the
relevant Swingline
 
Commitment accordingly
 
but shall
 
not otherwise
 
cance
l
or
 
reduce
 
the
Commitment
 
of
 
the
 
relevant
 
Lender
 
in
 
respect
 
of
 
the Facility (or of
 
any Revolving
Facility
 
Affiliate of
 
the relevant
 
Swingline
 
Lender) unless
 
and
 
to
 
the
 
extent
 
otherwise
provided for in this Agreement.
(h)
 
Any
 
cancellation
 
of
 
the
 
Commitment
 
of
 
a
 
Lender
 
that
 
is
 
a
 
Swingline
 
Lender
 
or
 
a
Revolving
 
Facility
 
Affiliate
 
of
 
a
 
Swingline
 
Lender
 
shall
 
not
 
cancel
 
or
 
reduce
 
any
Swingline
 
Commitment
 
of
 
that
 
Lender
 
or
 
its
 
Swingline
 
Affiliate
 
unless
 
a
 
Swingline
Commitment
 
of that Lender or its Swingline Affiliate
 
would exceed the Commitment
 
of
that Lender
 
immediately following
 
such
 
reduction, in
 
which
 
case
 
the
 
relevant
 
Swingline
 
Commitment
 
of
 
that
 
Lender
 
or
 
its
 
Swingline
 
Affiliate shall be
 
reduced by
 
such amount
as
 
is
 
necessary
 
to
 
ensure
 
that,
 
after
 
the
 
relevant
 
cancellation,
 
each
 
such
 
Swingline
Commitment does
 
not exceed
 
the Commitment of
 
that Lender.
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SECTION 5
COSTS OF UTILISATION
9.
INTEREST
9.1
Calculation of interest – Term Rate Advance
The rate of interest on each Term Rate Advance
 
for an Interest Period is
 
the percentage
rate per annum
 
which is the aggregate of the applicable:
(a)
 
Margin;
(b)
 
Term Reference Rate; and
(c)
 
Term Reference Rate
 
CAS (if any).
9.2
Calculation of interest – Compounded
 
Rate Advance
 
(a)
 
The rate of interest on each Compounded
 
Rate Advance
 
for any day during an
Interest Period is the percentage rate per
 
annum
 
which is the aggregate of the
applicable:
(i)
 
Margin; and
(ii)
 
Compounded Reference Rate for that day.
 
(b)
 
If any day during an Interest Period for a Compounded
 
Rate Advance
 
is not an
RFR Banking
 
Day,
 
the rate
 
of interest
 
on that
 
Compounded Rate Advance
 
for that day
will be the rate applicable to the immediately
 
preceding RFR Banking Day.
9.3
Calculation of interest – Swingline
 
Advance
 
The
 
rate of interest
 
on each Swingline
 
Advance for each
 
Interest
 
Period shall accrue
from
 
day
 
to
 
day
 
and
 
is
 
(in
 
the
 
case
 
of
 
any
 
Dollar
 
Swingline
 
Advance)
 
the
 
Dollar
 
Swingline
Rate
 
or (in
 
the
 
case
 
of
 
any Euro
 
Swingline
 
Advance) the
 
Euro
 
Swingline
 
Rate.
9.4
Payment of interest
 
Each Borrower shall pay accrued interest on each Advance made to it on the last day
of each Interest Period.
 
9.5
Default interest
(a)
 
If an Obligor fails to pay
 
any amount payable by it under a Finance
 
Document on its due
date, interest
 
shall accrue
 
on the
 
overdue amount
 
from the
 
due date
 
up to
 
the date
 
of actual
payment (both
 
before and after
 
judgment) at
 
a rate
 
1.00 per
 
cent.
 
higher
 
than
 
the
 
rate
which
 
would have
 
been payable
 
if
 
the overdue amount had,
 
during
 
the
 
period of
 
non-
payment,
 
constituted
 
an
 
Advance
 
(not
 
being
 
a
 
Swingline
 
Advance)
 
in
 
the
 
currency
 
of
 
the
 
overdue
 
amount
 
for
 
successive Interest
 
Periods, each
 
of a
 
duration selected
 
by
the
 
Facility Agent
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(acting
 
reasonably).
 
Any
 
interest
 
accruing
 
under
 
this
 
Claus
e
9.
5
shall
 
be
immediately payable by the relevant Obligor
 
on demand by the Facility Agent.
(b)
 
Default interest (if
 
unpaid) arising on an overdue
 
amount will
 
be compounded with
 
the
overdue
 
amount
 
at
 
the
 
end
 
of each
 
Interest
 
Period
 
applicable to
 
that overdue amount
but will remain immediately
 
due and payable.
9.6
Notification of rates of interest
 
(a)
 
The applicable Agent shall promptly
 
notify the Lenders, ABB
 
and the relevant
Borrowers of the determination
 
of a rate of interest under this Agreement.
(b)
 
The
 
applicable
 
Agent
 
shall
 
promptly
 
upon
 
a
 
Compounded
 
Rate
 
Interest
Payment being determinable
 
notify:
 
(i)
 
the
 
relevant
 
Borrowe
r
and
 
AB
B
of
 
that
 
Compounded
 
Rate
 
Interest
Payment;
 
(ii)
 
each relevant
 
Lender
 
of the
 
proportion of
 
that Compounded
 
Rate Interest
Payment
 
which
 
relates
 
to
 
that
 
Lender's
 
participation
 
in
 
the
 
relevant
Compounded Rate Advance; and
(iii)
 
the relevant Lenders, ABB and the relevant
 
Borrower of each applicable rate of
interest relating to
 
the determination of
 
that Compounded
 
Rate Interest Payment.
 
(c)
 
This
 
Claus
e
9.
6
shall
 
not
 
requir
e
an
y
Agent
 
to
 
make
 
any
 
notification
 
to
 
any
Party on a day which is not a Business
 
Day.
9.7
Minimum Interest
(a)
 
When entering
 
into this
 
Agreement, the
 
Parties have
 
assumed that
 
the
 
interest payable
hereunder is not
 
and will
 
not become
 
subject to Swiss
 
withholding tax. Therefore,
 
if
 
a
Tax
 
Deduction
 
is
 
required
 
by
 
law
 
to
 
be
 
made
 
in
 
one
 
of
 
the
 
circumstances
 
set
 
out
 
in
paragrap
h
(d
)
of
 
Claus
e
13.
2
(
Ta
x
 
gross-up
)
 
and
 
if paragraph (c) of Clause 13.2 (
Ta
x
gross-up
)
 
should
 
be
 
unenforceable
 
in
 
respect
 
of
 
a
 
Borrower
 
incorporated
 
in
 
Switzerland
 
or,
 
if
 
different,
 
resident
 
in Switzerland
 
for tax purposes, each Borrower
acknowledges and agrees
 
that:
(i)
 
the applicable interest rate in relation to that interest
 
payment shall be:
 
(A)
 
the
 
interest
 
rate
 
which
 
would
 
have
 
applied
 
to
 
that
 
interest
 
payment in the absence of this paragraph (a),
 
divided
 
by
 
(B)
 
one
 
(1)
 
minus
 
the
 
rate
 
at which
 
the
 
relevant
 
Tax Deduction
 
is
required
 
to
 
be
 
made
 
(where
 
the
 
rate
 
at
 
which
 
the
 
relevant
 
Tax
Deduction
 
is
 
required
 
to
 
be
 
made
 
is
 
for
 
this
 
purpose
 
expressed
 
as
 
a
fraction of (1) rather than as percentage);
(ii)
 
the
 
Borrower
 
shall:
 
(i
)
pay
 
the
 
relevant
 
interest
 
at
 
the
 
adjusted
 
rate
 
in
accordance with
 
paragraph (a)(i) above and (ii)
 
make the Tax
 
Deduction on the
interest so recalculated.
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(b)
 
To the extent
 
that paragraph
 
(a) above
 
applies,
 
each
 
Borrower shall
 
provide to
 
the Lenders
the documents
 
required by law or each applicable double taxation treaty for the Lenders
to prepare claims
 
for the refund
 
of any Swiss
 
withholding
 
tax so deducted.
 
(c)
 
In this Clause, a reference
 
to a "Tax Deduction"
 
has
 
the same meaning given
 
to
the term in Clause 13.1 (
Definitions
).
10.
INTEREST PERIODS
 
(a)
 
The
 
relevant
 
Borrower
 
may
 
select
 
an
 
Interest
 
Period
 
for
 
an
 
Advance
 
in
 
the
Utilisation Request.
(b)
 
Subject to this Clause 10, a Borrower may
 
select an Interest Period of:
(i)
 
in relation to any Advance (other than a Swingline Advance),
 
a period specified
in
 
the
 
applicable Reference
 
Rate
 
Terms
 
or
 
such
 
shorter
 
period
 
ending
 
on
 
the
Termination
 
Date or any
 
other period agreed between the relevant Borrower (or
ABB on its
 
behalf) and
 
the Facility
 
Agent (acting on
 
the instructions
 
of all
 
the
Lenders); or
 
(ii)
 
in
 
relation
 
to
 
any
 
Swingline
 
Advance,
 
a
 
period
 
not
 
exceedin
g
five
Business Days.
 
(c)
 
An Interest
 
Period for
 
an Advance
 
shall not
 
extend beyond
 
the Termination Date.
(d)
 
Each Advance has one Interest Period only.
 
(e)
 
Any rules specified as
 
"Business Day
 
Conventions" in the applicable
 
Reference
Rate Terms for a Utilisation
 
or Unpaid Sum shall apply to each Interest
 
Period for that
Utilisation or Unpaid Sum.
11.
CHANGES TO THE CALCULATION OF INTEREST
11.1
Market disruption
(a)
 
If
 
a
 
Market
 
Disruption
 
Event
 
occurs
 
i
n
relation
 
to
 
an
 
Advance
 
(other
 
than
 
a Dollar
Swingline Advance)
 
for any
 
Interest Period,
 
then the rate
 
of interest
 
on each
 
Lender's
 
share
 
of
 
that
 
Advance
 
for
 
the
 
Interest
 
Period
 
shall
 
be
 
the
 
percentage rate per
 
annum
which is the sum of:
(i)
 
the Margin; and
(ii)
 
th
e
weighted
 
average
 
of
 
rates
 
notified
 
to
 
the
 
Facility
 
Agent,
 
ABB
 
and
 
the
relevant Borrower
 
by each
 
Lender in
 
a certificate
 
(which sets
 
out
 
the
 
details of the
computation of the relevant rate
 
and shall be
prima facie
 
non-binding
 
evidence
of
 
the
 
same)
 
as
 
soo
n
as
 
practicable
 
and
 
in
 
any event before interest is due to
be
 
paid
 
in
 
respect
 
of
 
that
 
Interest
 
Period,
 
to
 
be
 
that
 
which
 
expresses
 
as
 
a
percentage rate per annum the cost to that
 
Lender
 
of
 
funding
 
its
 
participation
 
in
 
that
 
Advance
 
from
 
whatever
 
source it may reasonably select.
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(b)
 
In this Agreement
 
"
Market Disruption Event
" means:
(i)
 
in relation to a Term
 
Rate Advance in Euro:
(A)
 
at
 
the
 
relevant
 
Quotation
 
Time
 
for
 
the
 
fixing
 
of
 
the
 
relevant
Screen Rate on
 
the relevant
 
Quotation Day for
 
that Advance,
 
the relevant
Scree
n
Rate
 
is
 
not
 
available
 
and
 
it
 
is
 
not
 
possible
 
to calculate an
Interpolated Screen Rate for that Advance;
 
or
(B)
 
before close of
 
business in
 
London on the
 
Quotation Day
 
for the
 
relevant
Interest Period, the Facility Agent
 
receives notification(s)
 
from a Lender
or Lenders (whose participation(s)
 
in an Advance exceed 50 per cent. of
that Advance)
 
that the
 
cost
 
to it/them
 
of funding its/their
 
participation(s)
in that
 
Advance
 
from the
 
wholesale market
 
for Euro would
 
be in excess
of
 
the applicable Screen Rate;
(ii)
 
in relation to a Term Rate Advance in Dollars
 
and a Compounded Rate Advance,
before
 
the
 
Reporting
 
Time
 
for
 
that
 
Advance
 
the
 
Agent
 
receives
notification(s) from a Lender or Lenders
 
(whose participation(s) in
 
an
 
Advance
exceed
 
50
 
per
 
cent.
 
of
 
that
 
Advance
)
tha
t
the
 
cost
 
to
it/them
 
of funding
 
its/their
 
participation(s) in
 
that Advance
 
from the wholesale
market
 
for
 
the
 
relevant
 
currenc
y
would
 
be
 
in
 
excess o
f
the applicable Market
Disruption Rate; and
 
(iii)
 
in relation
 
to a
 
Euro Swingline
 
Advance, on
 
the relevant
 
Utilisation Date,
the
 
relevant
 
Screen
 
Rate
 
is
 
not
 
available
 
to
 
determine
 
the
 
Euro
Swingline Rate.
11.2
Alternative basis of interest or funding
 
(a)
 
If a Market Disruption
 
Event occurs and
 
the Facility Agent
 
or ABB so
 
requires,
the Facility
 
Agent
 
and ABB
 
shall enter
 
into negotiations (for
 
a period
 
of not more
 
than
thirty days) with
 
a view
 
to agreeing a
 
substitute basis
 
for determining
 
the rate of interest.
 
(b)
 
Any
 
alternative
 
basis
 
agreed
 
pursuant
 
to
 
paragrap
h
(a
)
above
 
shall,
 
with
 
the
prior consent of the Majority Lenders and ABB, be binding
 
on all Parties.
 
(c)
 
If Clause
 
11.1
 
applies but any
 
Lender does
 
not notify a
 
rate to the
 
Facility
 
Agent
by the time stated in
 
paragraph (a)(ii) of
 
Clause 11.1 for the relevant Advance,
 
the rate of
interest shall be calculated on the basis of the rates notified by
 
the remaining Lenders.
11.3
Break Costs
 
(a)
 
If an amount is specified as Break Costs
 
in the relevant Reference Rate Terms
for
 
a
n
Advanc
e
or
 
Unpaid
 
Sum
,
th
e
relevant
 
Borrower
 
shall,
 
withi
n
three
 
Business
Days of demand
 
by a Finance
 
Party, pay to that
 
Finance Party
 
its Break
 
Costs attributable
to all or any part
 
of an Advance or Unpaid
 
Sum
 
being paid by that
 
Borrower
 
on
 
a
 
day
other
 
than
 
the
 
last
 
day
 
of
 
an
 
Interest
 
Period for
 
that
 
Advance or Unpaid Sum.
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(b)
 
Each
 
Lender
 
shall,
 
as
 
soon
 
as
 
reasonably
 
practicable
 
after
 
a
 
demand
 
by
 
the Facility
Agent, provide
 
to ABB
 
and the
 
relevant Borrower
 
a certificate (which
 
shall
 
constitut
e
prima
 
faci
e
non-binding
 
evidence
 
of
 
the
 
matters
 
to
 
which
 
it
 
refers)
 
addressed
 
to
 
the
 
Facility
 
Agent,
 
ABB
 
and
 
the
 
relevant
 
Borrower confirming
 
the amount of its Break
Costs for
 
any Interest
 
Period in
 
which
 
they
 
accrue and
 
setting out
 
the manner
 
of
 
computing
such Break Costs.
12.
FEES
12.1
Commitment Fee
 
(a)
 
ABB
 
shall
 
pay
 
to
 
the
 
Facility
 
Agent
 
(for
 
the
 
account
 
of
 
each
 
Lender)
 
a
commitment fee
 
in the
 
Base
 
Currency computed
 
at 35
 
per cent.
 
of the
 
applicable Margin
from time to time on that Lender's
 
Available Commitment.
(b)
 
The
 
accrued
 
commitment
 
fee
 
is
 
payable
 
on
 
the
 
last
 
day
 
of
 
each
 
successive
 
period of
three Months
 
commencing
 
from
 
the date
 
of this
 
Agreement and
 
on the
 
last
 
day
 
of
 
the
Availability
 
Period and, if
 
a Lender's Commitment is
 
cancelled in full, on the
 
date
 
such
cancellation becomes
 
effective in
 
respect of
 
the
 
amount
 
accrued in
 
respect of
 
that Lender's
Available Commitment immediately before
 
such cancellation.
 
(c)
 
No commitment
 
fee is payabl
e
to the
 
Facility
 
Agent (for
 
the account
 
of a
 
Lender)
on any Available Commitment of that Lender for any day on which
 
that Lender is a
Defaulting Lender.
12.2
Utilisation Fee
 
(a)
 
ABB shall pay to the Facility Agent (for
 
the account of the Lenders
pro rata
to
their
 
Commitments)
 
a
 
utilisation
 
fee
 
in
 
respect
 
of
 
the
 
Total
 
Outstandings
computed at the rate of:
(i)
 
0.075
 
per
 
cent.
 
per
 
annum
 
for
 
each
 
day
 
that
 
the
 
amount
 
of
 
the
 
Total
Outstandings
 
is
 
less
 
than
 
or
 
equal
 
to
 
33.33
 
per
 
cent.
 
of
 
the
 
Total
Commitments as at the date of this Agreement;
(ii)
 
0.15
 
per
 
cent.
 
per
 
annum
 
for
 
each
 
day
 
that
 
the
 
amount
 
of
 
the
 
Total
Outstandings is greater
 
than 33.33 per cent.
 
of the Total
 
Commitments but less
than or equal
 
to 66.66 per
 
cent. of the
 
Total Commitments as at the
 
date of this
Agreement; and
(iii)
 
0.30
 
per
 
cent.
 
per
 
annum
 
for
 
each
 
day
 
that
 
the
 
amount
 
of
 
the
 
Total
Outstandings is greater than 66.66 per cent. of
 
the Total
 
Commitments as at the
date of this Agreement.
(b)
 
The accrued utilisation fee is
 
payable on the last day of
 
each successive period of
 
three
Months
 
commencing
 
from
 
the
 
date
 
of
 
this
 
Agreement
 
and
 
on
 
the
 
Termination Date.
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12.3
Participation Fee
 
ABB
 
shall
 
pay
 
to
 
the
 
Facility
 
Agent
 
(for
 
the
 
account
 
of
 
the
 
Original
 
Lenders)
 
a
participation fee in the amount
 
and at the time agreed in a Fee
 
Letter.
 
12.4
Arrangement Fee
ABB shall pay to the Facility
 
Agent (for the account of the Mandated Lead
 
Arrangers)
 
an
arrangement fee in the amount and at the time agreed
 
in a Fee Letter.
12.5
Agency Fee
 
ABB shall pay to each Agent (for its own account)
 
an agency fee in the amount
 
and at
the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT
 
OBLIGATIONS
13.
TAX GROSS UP AND INDEMNITIES
13.1
Definitions
(a)
 
In this Agreement:
"
Initial
 
Borrower
 
Jurisdiction
"
 
means
 
any
 
of
 
The
 
Netherlands,
 
the
 
United
States of America or Switzerland.
"
Protected Party
" means a Finance Party which is or
 
will be, for or on account of Tax,
subject to any liability or required to
 
make any payment in relation to a sum received or
receivable
 
(or
 
any
 
sum
 
deemed
 
for
 
the
 
purposes
 
of
 
Tax
 
to
 
be
 
received
 
or
 
receivable)
under a Finance Document.
"
Qualifying Lender
" means:
 
(i)
 
in
 
respect of a
 
payment by
 
a Borrower
 
incorporated in Switzerland,
 
a
Lender which is a Qualifying Bank;
 
(ii)
 
in respect of a payment by a Borrower
 
incorporated in
 
the United
 
States
of America, a Lender which is:
(A)
 
created
 
or
 
organised
 
under
 
the
 
laws
 
of
 
the
 
United
 
States
 
of
America
 
or
 
of
 
any
 
state
 
(including
 
the
 
District
 
of
 
Columbia)
thereof; or
(B)
 
resident in a
 
jurisdiction having and
 
eligible for the
 
benefit of a
 
double
taxation
 
agreement
 
wit
h
the
 
United
 
States
 
of
 
America which makes
provision for full exemption from tax imposed by the
 
United
 
States
 
of
America
 
on
 
interest
 
and
 
which
 
does
 
not carry
 
on
 
a
 
business
 
in
 
the
United
 
States
 
of
 
America
 
through
 
a
 
permanent
 
establishment
 
with
which that Lender's
 
participation in the Facility
 
is effectively connected;
or
(C)
 
entitled
 
to
 
receive
 
payments
 
under
 
the
 
Finance
 
Documents
 
without
deduction
 
or
 
withholding of
 
any United States
 
federal
 
income taxes,
and
 
which
 
has
 
complied
 
with
 
any
 
procedural
 
requirements
 
within
 
its control
necessary
 
to
 
receive
 
such
 
payment
 
without
 
the
 
imposition
 
of United States
withholding tax; and
 
(iii)
 
in respect of a payment by a Borrower
 
incorporated in any jurisdiction
except the United States of America or Switzerland,
 
any Lender.
"
Tax Credit
"
 
means a
 
credit
 
against, relief or remission for, or repayment
 
of
any Tax.
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"
Tax Deduction
" means a deduction
 
or withholding for or on account of
 
Tax from a
payment under a Finance Document, other
 
than a FATCA
 
Deduction.
"
Tax Payment
" means an increased payment made by
 
ABB or a Borrower to a Finance
Party under
 
Clause
 
9.7
 
(
Minimum
 
Interest
), Clause
 
13.2
 
(
Tax gross-up
)
 
or a
 
payment
 
made
by ABB or a Borrower under Clause 13.3 (
Tax indemnity
).
(b)
 
In
 
this
 
Claus
e
1
3
a
 
reference
 
to
 
"
determines
"
 
or
 
"
determined
"
 
means,
 
save where
expressly
 
stated
 
to
 
the
 
contrary,
 
a
 
determination
 
made in
 
the
 
absolute
 
discretion of the
person making the determination
 
acting in good faith.
13.2
Tax gros
 
s-up
 
(a)
 
ABB and each Borrower shall make all payments
 
to be made by it without
 
any
Tax Deduction,
 
unless a Tax Deduction is required by law.
 
(b)
 
ABB, a Borrower or a Lender
 
shall promptly upon becoming aware that ABB
or a
 
Borrower
 
(as the
 
case
 
may be)
 
must make
 
a Tax Deduction
 
(or that
 
there is
 
any
 
change
in the rate or the basis of a Ta
 
x
 
Deduction) notify the Facility Agent accordingly.
 
If the
Facility
 
Agent
 
receives
 
such
 
notification
 
from
 
a
 
Lender
 
it
 
shall
 
notify
 
ABB
 
and
 
the
relevant Borrower.
(c)
 
If a
 
Tax
 
Deduction is required
 
by law
 
to be
 
made by ABB or
 
a Borrower in
 
one of
 
the
circumstances set out in paragraph (d) below, the amount of the payment due from ABB
or
 
that
 
Borrower
 
shall
 
be
 
increased
 
to
 
an
 
amount
 
which
 
(after
 
making
 
any
 
Tax
Deduction)
 
leaves
 
an
 
amount
 
equal
 
to
 
the
 
payment
 
which would have been due if no
Tax Deduction
 
had been required.
 
(d)
 
The circumstances referred
 
to in paragrap
h
(c) above
 
are where
 
a person
 
entitled
to the payment:
 
(i)
 
is an Agent;
(ii)
 
is a Qualifying Lender; or
 
(iii)
 
was a Qualifying Lender at the time it became a Lender
 
but has ceased
to
 
be
 
a
 
Qualifying
 
Lender
 
to
 
the
 
extent
 
that
 
this
 
altered
 
status
 
results from
 
any
 
change
 
after
 
the
 
date
 
of
 
this
 
Agreement
 
in
 
(or
 
in
 
the
 
interpretation,
 
administration,
 
or
 
application
 
of)
 
any
 
law
 
or
 
double taxation agreement or
any published
 
practice or published
 
concession of
 
any relevant taxing authority.
(e)
 
If
 
ABB
 
or
 
a
 
Borrower
 
is
 
required
 
to
 
make
 
a
 
Tax
 
Deduction,
 
it
 
shall
 
make
 
that
 
Tax
Deduction and any
 
payment required in connection
 
with that Tax
 
Deduction within
 
the
time allowed and in the minimum
 
amount required by law.
(f)
 
Within 30 days of making either
 
a Tax Deduction or any payment
 
required in connection
with that Tax Deduction,
 
ABB or the
 
relevant Borrower
 
(as the case
 
may be) shall deliver
to the Facility Agent for the Finance Party entitled
 
to the payment
 
evidence
 
reasonably
satisfactor
y
to
 
that
 
Finance
 
Party
 
that
 
the
 
Tax
 
Deduction
 
has
 
been
 
made
 
or
 
(as
applicable) any appropriate
 
payment paid
 
to
 
the relevant taxing authority.
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(g)
 
Each
 
Finance
 
Party,
 
ABB
 
and
 
the
 
Borrowers
 
shall
 
co-operate
 
in
 
completing
 
any
procedural formalities necessary for ABB
 
or a Borrower
 
to make a payment
 
to which the
Finance Party
 
is entitled
 
without a
 
Tax Deduction or
 
with a
 
reduced Tax Deduction.
 
Each
Finance Party shall on the reasonable
 
written request of
 
ABB
 
or
 
a
 
Borrower
 
complete
 
and
 
deliver
 
to
 
ABB
 
or
 
that
 
Borrower all
 
documentation reasonably required
 
by ABB
or that Borrower
 
in order
 
to enable
 
it
 
to
 
make
 
such
 
payments
 
without
 
a
 
Tax
 
Deduction
or
 
with
 
a
 
reduced
 
Tax
 
Deduction
 
(so
 
long
 
as
 
the
 
completion
 
or
 
delivery
 
of
 
such
documentation
 
would
 
not materially
 
prejudice the
 
legal or
 
commercial position
 
of
 
the
relevant Finance
 
Party).
13.3
Tax indemnity
 
(a)
 
ABB shall
 
(within three
 
Business
 
Days of
 
written demand
 
by the
 
Facility
 
Agent)
pay to a Protected Party
 
an amount equal
 
to the loss, liability or
 
cost which
 
that Protected
Party determines will be or has been (directly or indirectly)
 
suffered for or on account of
Tax by that Protected Party.
 
(b)
 
Paragrap
h
(a
)
above
 
shall
 
not
 
apply
 
with
 
respect
 
to
 
any
 
Tax
 
assessed
 
on
 
a
Finance Party:
(i)
(A)
 
under
 
the
 
law
 
of
 
the
 
jurisdiction
 
in
 
which
 
that
 
Finance
 
Party
 
is
incorporated or,
 
if different,
 
the jurisdiction
 
(or jurisdictions) in
 
which
that Finance Party is treated as resident for
 
tax purposes;
(B)
 
under
 
the
 
law of
 
the
 
jurisdiction in
 
which that
 
Finance Party's Facility
Office
 
is
 
located
 
in
 
respect
 
of
 
amounts
 
received
 
or
 
receivable in that
jurisdiction; or
(C)
 
arising by
 
reason of
 
the making
 
of
 
an Advance
 
to a
 
Borrower
 
in an
 
Initial
 
Borrower
 
Jurisdiction
 
under
 
the
 
law
 
of
 
such jurisdiction, except
to the extent
 
arising by reason
 
of a change in
 
law
 
or
 
in
 
any
 
regulation
 
occurring
 
after
 
the
 
date
 
of
 
this Agreement
,
provided
 
tha
t
this
paragrap
h
(b)(i)(C
)
shall
 
not apply to any Tax assessed or imposed on
an Agent,
if that
 
Tax
 
is imposed on
 
or calculated by
 
reference to the
 
net income received
or
 
receivabl
e
(but
 
not
 
an
y
sum
 
deemed
 
to
 
be
 
received
 
or
 
receivable) by that
Finance Party;
(ii)
 
which
 
is
 
compensated
 
for
 
by
 
Clause
 
9.7
 
(
Minimum
 
Interest
)
 
or
Clause
 
13.2
 
(
Tax
 
gross
 
up
)
 
(or
 
would
 
have
 
been
 
so
 
compensated but
 
for
 
an
exception to those Clauses); or
(iii)
 
which relates to a FATCA
 
Deduction required to be made by a Party.
(c)
 
A Protected
 
Party making,
 
or intending
 
to make
 
a claim
 
pursuant to
 
paragraph
 
(a)
above shall promptly notify the Facility Agent
 
of the event which will give,
 
or has given,
rise to
 
the
 
claim, following
 
which the
 
Facility
 
Agent shall
 
notify ABB.
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(d)
 
A Protected Party shall, on receiving a payment from ABB
 
under this Clause
13.3, notify
 
the Facility Agent.
 
13.4
Tax Credit
If ABB or a
 
Borrower makes a Tax Payment and the
 
relevant Finance Party determines
 
that:
(a)
 
a Tax Credit
 
is attributable to that Tax
 
Payment; and
(b)
 
that Finance Party has
 
obtained, utilised and retained
 
that Tax
 
Credit,
the Finance Party shall pay an amount to ABB (or
 
as the case may be) that Borrower which that
Finance Party determines, acting in good faith, will leave that Finance Party
 
(after that payment)
in the same after-Tax
 
position as it would have been in had
 
the Tax
 
Payment not
 
been made
 
by
ABB or that Borrower (as the case may
 
be).
 
The relevant Finance Party shall endeavour, acting
in good faith,
 
to obtain, utilise
 
and retain the
 
Tax Credit save
 
that it shall
 
not be
 
obliged
 
to disclose
any information
 
relating to its
 
tax or other affairs or
 
any computations in respect thereof.
13.5
Lender Status Confirmation
(a)
 
Each Original Lender herewith confirms and
 
represents that it is a Qualifying
Bank
 
and
 
each
 
Lender
 
which
 
becomes
 
a
 
Party
 
after
 
the
 
date
 
of
 
this
 
Agreement shall
confirm and represent in the documentatio
n
which it executes
 
on becoming a Party
 
as
 
a
Lender that it is a Qualifying Bank.
(b)
 
Each New Lender that becomes a Lender after the date
 
of this Agreement shall indicate
in th
e
documentation which
 
it executes
 
on becoming
 
a Party
 
as a
 
Lender,
and for
 
the
 
benefit of
 
the Facility
 
Agent and
 
without liability to
 
any Obligor,
 
whether
or not it is a Qualifying Lender.
(c)
 
If a New Lender fails to indicate its status
 
in accordance with this Clause 13.5
 
then
 
such
New
 
Lender
 
shall
 
be
 
treated
 
for
 
the
 
purposes
 
of
 
this
 
Agreement
 
(including by each
Obligor) as if it were not a Qualifying Lender until such time as
 
it
 
notifies
 
the
 
Facility
Agent
 
to
 
the
 
contrary
 
(and
 
the
 
Facility
 
Agent,
 
upon receipt of such notification, shall
inform ABB).
 
For the
 
avoidance of
 
doubt the
 
documentation which
 
a Lender executes
 
on
becoming a
 
Party as
 
a Lender
 
shall
 
not be
 
invalidated by
 
any failure
 
of a
 
Lender to
 
comply
with this Clause 13.5.
13.6
Qualifying Lenders
Any
 
Lender
 
which
 
ceases, for
 
any
 
reason,
 
to
 
be a
 
Qualifying
 
Lender
 
shall promptly
notify ABB and the relevant Borrower(s)
 
of its change of status.
 
13.7
Stamp taxes
ABB shall pay
 
and, within
 
3 Business
 
Days of demand,
 
indemnify each Finance
 
Party against
 
any
cost, loss or liability
 
such Finance
 
Party incurs in relation
 
to all stamp
 
duty, registration and other
similar Taxes payable in
 
respect of any Finance
 
Document, but not in
 
respect of
 
any assignment
or
 
transfer
 
pursuant to
 
Claus
e
2
3
(
Changes
 
to
 
the
Lenders
).
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13.8
Value
 
added tax
 
(a)
 
All consideration
 
payable under
 
a Finance Document
 
by ABB or the
 
Borrowers
to a
 
Finance Party
 
shall be
 
deemed to
 
be exclusive
 
of any
 
VAT.
 
If
VAT
is
 
chargeable
on
 
any
 
supply
 
made
 
by
 
any Finance
 
Party to
 
any
 
Party in
 
connection with
 
a
 
Finance
Document, that Party shall pay to the
 
Finance Party (in
 
addition to and
 
at
 
the
 
same time
as
 
paying
 
the
 
consideration)
 
an
 
amount
 
equal
 
to
 
the
 
amount of the VA
 
T.
(b)
 
Where
 
a
 
Finance
 
Document
 
requires
 
ABB
 
or
 
the
 
Borrowers
 
to
 
reimburse
 
a Finance
Party for any
 
costs or expenses, ABB or the Borrowers
 
(as the case may be) shall also at
the same time pay and indemnify
 
that Finance Party
 
against all VAT
 
directly incurred by
that
 
Finance
 
Party
 
in
 
respect of
 
the costs
 
or
 
expenses save
 
to
 
the
 
extent
 
that
 
such
Finance
 
Part
y
reasonably
 
determines
 
that
 
i
t
is
 
entitled to repayment
 
or credit in
 
respect
of the VAT.
13.9
FATCA
 
Information
 
(a)
 
Subject to paragraph (c) below, each Party shall, within
 
ten Business Days
 
of a
reasonable request by another Party:
(i)
 
confirm to that other Party
 
whether it is:
(A)
 
a FATCA
 
Exempt Party; or
(B)
 
not a FATC
 
A
 
Exempt Party;
(ii)
 
supply
 
to
 
that
 
other
 
Party
 
such
 
forms,
 
documentation
 
and
 
other
information
 
relating
 
to
 
its
 
status
 
under
 
FATCA
 
as
 
that
 
other
 
Party
 
reasonably
requests
 
for
 
the
 
purposes
 
of
 
that
 
other
 
Party's
 
compliance
 
with FATCA.
(b)
 
If a Party confirms to
 
another Party pursuant
 
to paragraph
 
(a)(i) above
 
that it
 
is a FATC
 
A
Exempt Party
 
and
 
it subsequently
 
becomes aware
 
that
 
it
 
is
 
not
 
or has ceased
 
to
 
be
 
a
FATC
 
A
 
Exempt
 
Party,
 
that
 
Party shall notify
 
that other
 
Party
 
reasonably promptly.
 
(c)
 
Paragrap
h
(a) above
 
shall not oblige
 
any Finance Party
 
to do
 
anything which
would or might in its reasonable opinion constitute a breach of:
(i)
 
any law or regulation;
(ii)
 
any fiduciary duty; or
(iii)
 
any duty of confidentiality.
 
(d)
 
If
 
a
 
Party
 
fails
 
to
 
confirm
 
whether
 
or
 
not
 
it
 
is
 
a
 
FATCA
 
Exempt
 
Party
 
or
 
to supply
forms, documentation or
 
other information requested
 
in accordance with
 
paragraph (a)(i)
or
 
(a)(ii)
 
above
 
(including,
 
for
 
the
 
avoidance
 
of
 
doubt,
 
where
 
paragraph
 
(c)
 
above
applies), then such Party
 
shall be treated
 
for the purposes of the
 
Finance Documents (and
payments under them) as if it is not
 
a FATCA
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Exempt
 
Party unti
l
such
 
time
 
as
 
the
 
Party in
 
question provides
 
the requested
confirmation, forms, documentation
 
or other information.
(e)
 
If
 
a
 
Borrower
 
is
 
a
 
US
 
Tax
 
Obligor
 
or
 
the
 
Facility Agent
 
reasonably
 
believes
 
that
 
its
obligations
 
under
 
FATCA
 
or
 
any
 
other
 
applicable
 
law
 
or
 
regulation
 
require
 
it,
 
each
Lender shall, within ten Business
 
Days of:
 
(i)
 
where an
 
Original Borrower
 
is a
 
US Tax Obligor
 
and
 
the relevant
 
Lender
is an Original Lender, the date of this Agreement;
 
(ii)
 
where
 
a Borrower
 
is
 
a US
 
Tax
 
Obligor on
 
a
 
date
 
on which
 
any
 
other
Lender becomes a Party as a Lender, that date;
 
(iii)
 
the date a new US Tax
 
Obligor accedes
 
as a Borrower;
 
or
 
(iv)
 
where a Borrower is not
 
a US Tax
 
Obligor, the date of a request from
the Facility Agent,
supply to the Facility
 
Agent:
(1)
 
a withholding
 
certificate on
 
Form W-8, Form
 
W-9 or any
other relevant form;
 
or
(2)
 
any
 
withholding
 
statement
 
or
 
other
 
document,
authorisation
 
or
 
waiver
 
as
 
the
 
Facility
 
Agent
 
may
 
require
 
to
certify
 
or
 
establish
 
the
 
status
 
of
 
such
 
Lender
 
under FATCA
or that other law or regulation.
(f)
 
The
 
Facility
 
Agent
 
shall
 
provide
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
document, authorisation
 
or waiver
 
it receives
 
from a
 
Lender pursuant
 
to
 
paragraph
 
(e)
above to the relevant Borrower.
(g)
 
If any withholding certificate, withholding statement, document, authorisation or waiver
provided to
 
the Facility
 
Agent by
 
a Lender
 
pursuant to
 
paragraph (e)
 
above
 
is
 
or
 
becomes
materially
 
inaccurate
 
or
 
incomplete,
 
that
 
Lender
 
shall promptly
 
update
 
it
 
and
provide
 
such
 
updated
 
withholding
 
certificate, withholding statement,
 
document,
authorisation or waiver to the Facility
 
Agent unless it
 
is
 
unlawful
 
for
 
the
 
Lender
 
to
 
do
so
 
(in
 
which
 
case
 
the
 
Lender
 
shall promptly notify
 
the
 
Facility
 
Agent). The
 
Facility
Agent
 
shall
 
provide
 
any
 
such
 
updated
 
withholding
 
certificate,
 
withholding statement,
document, authorisation
 
or waiver to the relevant Borrower.
(h)
 
The
 
Facility
 
Agent
 
may
 
rely
 
on
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
document, authorisation
 
or waiver
 
it receives
 
from a Lender
 
pursuant
 
to
 
paragrap
h
(e
)
o
r
(g
)
above without
 
further verification. Th
e
Facility
 
Agent shall
 
not
 
be
 
liable
 
for
 
any
action
 
taken
 
by
 
it
 
under
 
or
 
in
 
connection
 
with paragraphs
 
(e), (f) or (g) above.
13.10
FATCA
 
Deduction
(a)
 
Each Party
 
may make
 
any FATCA Deduction it is
 
required to
 
make by
 
FATCA,
and any payment required in connection
 
with
 
that FATC
 
A
 
Deduction, and
 
no
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Party
 
shall be
 
required
 
to
 
increase
 
any
 
payment
 
in
 
respect of
 
which
 
it
 
makes such a
FATC
 
A
 
Deduction or
 
otherwise compensate
 
the recipient
 
of the
 
payment
 
for that FATCA
Deduction.
(b)
 
Each Party shall promptly, upon becoming aware
 
that it must make a FATCA Deduction
(or that there is
 
any change in the
 
rate or the basis
 
of such FATCA
 
Deduction), notify the
Party to whom it
 
is making the payment
 
and, in addition, shall notify ABB,
 
the Facility
Agent and the other Finance Parties.
14.
INCREASED COSTS
14.1
Increased costs
(a)
 
Subject
 
to
 
Claus
e
14.
3
(
Exceptions
)
 
ABB
 
shall,
 
within
 
3
 
Business
 
Days
 
of
 
a demand
by the Facility
 
Agent, pay for
 
the account
 
of a
 
Finance Party
 
the amount
 
of any Increased
Costs
 
incurred
 
by
 
that
 
Finance
 
Party
 
or
 
any
 
of
 
its
 
Affiliates
 
as
 
a
 
result
 
of
 
(i)
 
the
introduction of
 
or any
 
change in (or in the
 
interpretation or application
 
of)
 
any
 
law
 
or
 
regulation
 
or
 
(ii)
 
compliance
 
with
 
any
 
law
 
or regulation made after the date
 
of this
Agreement.
(b)
 
In this Agreement
 
"
Increased Costs
" means:
 
(i)
 
a reduction in the rate of
 
return from the Facility or
 
on a Finance Party's
(or its Affiliate's) overall capital;
 
(ii)
 
an additional or increased cost; or
(iii)
 
a reduction
 
of any
 
amount due
 
and payable
 
under any
 
Finance Document,
 
which is incurred or suffered by a
 
Finance Party or any of its Affiliates
 
to the extent
 
that
 
it
 
is
 
attributable
 
to
 
that
 
Finance
 
Party
 
having
 
entered
 
into
 
its Commitment
 
or
 
funding
 
or
 
performing
 
its
 
obligations
 
under
 
any
 
Finance Document.
14.2
Increased cost claims
 
(a)
 
A Finance Party intending to make a claim pursuant
 
to Clause 14.1 (
Increased
costs
)
 
shall promptly notify
 
the
 
Facility Agent
 
of the event
 
giving rise
 
to
 
the claim,
following which the Facility
 
Agent shall promptly notify
 
ABB.
(b)
 
Each
 
Finance Party
 
shall, as
 
soon as
 
practicable after
 
a
 
demand by
 
the
 
Facility Agent
provide a
 
certificate confirming
 
the amount
 
of its
 
Increased Costs
 
with (subject
 
to any
rights
 
or
 
duties
 
of
 
confidentiality
 
the
 
relevant
 
Finance
 
Party
 
has
 
in
 
respect
 
of
 
such
information)
 
full supporting
 
details (which
 
certificate
 
shall constitute
prima facie
non-
binding evidence of the matters to which it relates).
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14.3
Exceptions
(a)
 
Clause 14.1
 
(
Increased costs
) does not apply
 
to the extent any
 
Increased Cost
is:
(i)
 
attributable to a Tax Deduction required by law to be made by ABB or
a Borrower
(ii)
 
compensated for by Clause 13.
3
(
Tax indemnity
) (or would have been
compensated
 
for
 
under
 
Claus
e
13.
3
(
Tax
 
indemnity
)
 
but
 
was
 
not
 
so
compensated
 
solely
 
because one
 
of
 
the
 
exclusions
 
in
 
paragrap
h
(b)
 
of Clause
13.3 (
Tax indemnity
) applied);
(iii)
 
not
 
payable
 
as
 
provided
 
in
 
Claus
e
23.
2
(
Conditions of
 
assignment or
transfer
);
(iv)
 
attributable to the breach by the relevant
 
Finance Party or its Affiliates
of any law or regulation;
(v)
 
not notified to ABB within 3 months of
 
being incurred;
(vi)
 
attributable
 
to
 
the
 
implementation
 
or
 
application
 
of
 
or
 
compliance
 
with
 
the
"International
 
Convergence
 
of
 
Capital
 
Measurement
 
and
 
Capital
 
Standards, a
Revised Framework"
 
published by
 
the Basel
 
Committee on
 
Banking Supervision
in
 
June 2004 in
 
the form
 
existing on
 
the date
 
of this
 
Agreement ("
Basel II
") or
Basel III or CRD
 
IV in the form existing
 
on
 
the
 
date
 
of
 
this
 
Agreement
 
or
 
any
other
 
law
 
or
 
regulation
 
which implements Basel II or Basel III
 
or CRD
 
IV in
the form existing
 
on the date of
 
this
 
Agreement (whether
 
such
 
implementation,
application
 
or compliance is by
 
a
 
government, regulator,
 
Finance Party
 
or any
of
 
its Affiliates); or
(vii)
 
attributable to a FATCA
 
Deduction required to be made
 
by a Party.
(b)
 
In this Clause
 
14.3:
(i)
 
a reference
 
to
 
a "
Tax Deduction
" has the
 
same meaning
 
given to
 
the
term in Clause 13.1 (
Definitions
); and
(ii)
 
"
Basel III
" means:
(A)
 
the
 
agreements
 
on
 
capital
 
requirements,
 
a
 
leverage
 
ratio
 
and
 
liquidity
standards contained
 
in "Basel
 
III:
 
A global regulatory
 
framework
 
for
 
more
 
resilient
 
banks
 
and
 
banking
 
systems",
 
"Basel III: International
framework
 
for
 
liquidity risk
 
measurement,
 
standards
 
and
 
monitoring"
 
and
 
"Guidance
 
for national
 
authorities operating
 
the
 
countercyclical
capital
 
buffer"
 
published
 
by
 
the
 
Basel
 
Committee
 
on
 
Banking
Supervision
 
in
 
December
 
2010,
 
each
 
as
 
amended,
 
supplemented
 
or
restated as at the date of this Agreement;
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(B)
 
the
 
rules for
 
global systemically
 
important banks
 
contained in "Global
systemically
 
important
 
banks:
 
assessment
 
methodology
 
and
 
the
additional
 
loss
 
absorbency requiremen
t
–
 
Rules
 
text"
 
published by
 
the
Basel
 
Committee
 
on
 
Banking
 
Supervision
 
in
 
November
 
2011,
 
as
amended, supplemented or restated
 
as at the
 
date of this Agreement; and
(C)
 
any
 
further
 
guidance
 
or
 
standards
 
published
 
by
 
the
 
Basel
Committee on Banking Supervision relating to "Basel III" as at the date
of this Agreement.
(iii)
 
"
CRD IV
" means EU CRD IV and UK CRD IV.
(iv)
 
"
EU CRD IV
" means:
(A)
 
Regulation (EU)
 
No
 
575/2013 o
f
the
 
European Parliament
 
and of
 
the
Council
 
of
 
26
 
June
 
2013
 
on
 
prudential
 
requirements
 
for
 
credit
institutions and investment firms; and
(B)
 
Directive
 
2013/36/EU
 
of
 
the
 
European
 
Parliament
 
and
 
of
 
the Council
of
 
26
 
June
 
2013
 
on
 
access
 
to
 
the
 
activity
 
of
 
credit
 
institutions and
the
 
prudential supervision of credit
 
institutions and
 
investment
 
firms,
 
amending
 
Directive
 
2002/87/EC
 
and repealing
 
Directives
 
2006/48/EC
and 2006/49/EC.
(v)
 
"
UK CRD IV
" means:
(A)
 
Regulation (EU) No 575/2013 of the European Parliament
 
and
of
 
the
 
Council
 
of 26
 
June 2013
 
on
 
prudential requirements
 
for credit
 
institutions
 
and
 
investment
 
firms
 
as
 
it
 
forms
 
part
 
of domestic law
of the
 
United Kingdom by
 
virtue of
 
the European
 
Union (Withdrawal)
Act 2018 (the "
Withdrawal Act
");
(B)
 
the
 
law
 
of
 
the
 
United
 
Kingdom
 
or
 
any
 
part
 
of
 
it,
 
which
immediately
 
before
 
IP
 
completion
 
day
 
(as
 
defined
 
in
 
the
 
European
Union
 
(Withdrawal
 
Agreement)
 
Act
 
2020)
 
implemented
 
Directive
2013/36/EU of
 
the European Parliament and
 
of the
 
Council of
 
26 June
2013 on access to
 
the activity of credit
 
institutions
 
and
 
the
 
prudential
 
supervision
 
of
 
credit
 
institutions and investment firms,
 
amending
Directive 2002/87/EC
 
and
 
repealing
 
Directives
 
2006/48/EC
 
and
2006/49/EC and its implementing measures; and
(C)
 
direct
 
EU
 
legislation
 
(as
 
defined
 
in
 
the
 
Withdrawal
 
Act),
 
which
immediately
 
before
 
IP
 
completion
 
day
 
(as
 
defined
 
in
 
the
 
European
Union (Withdrawal Agreement)
 
Act 2020) implemented EU
 
CRD IV as
it forms
 
part of
 
domestic law
 
of the
 
United
 
Kingdom
 
by
 
virtue
 
of
 
the
Withdrawal Act.
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15.
OTHER INDEMNITIES
15.1
Currency indemnity
(a)
 
If
 
any
 
sum
 
due
 
from
 
ABB
 
or
 
a
 
Borrower
 
under
 
the
 
Finance
 
Documents
 
(a "
Sum
"),
or any order,
 
judgment
 
or award
 
given or made in relation to a Sum, has to
 
be converted
from the
 
currency
 
(the "
First
 
Currency
")
 
in
 
which that
 
Sum is
 
payable
 
into
 
another
currency (the "
Second Currency
") for the purpose of:
(i)
 
making
 
or
 
filing
 
a
 
claim
 
or
 
proof
 
against
 
ABB
 
or
 
any
 
of
 
the
 
Borrowers;
 
(ii)
 
obtaining
 
or
 
enforcing an
 
order,
 
judgment
 
or
 
award
 
in relation
 
to
 
any
litigation or arbitration proceedings,
 
ABB or that Borrower
 
(as the case may be) shall as
 
an independent
 
obligation,
within 3 Business Days
 
of demand, indemnify
 
each Finance Party to
 
whom that Sum is
due
 
against
 
any
 
cost,
 
loss
 
or
 
liability
 
arising
 
out
 
of
 
or
 
as
 
a
 
result
 
of
 
the
 
conversion
including
 
any discrepancy
 
between
 
(A) the
 
rate
 
of exchange
 
used to convert
 
that Sum
from the First
 
Currency into the Second Currency and
 
(B) the rate
 
or rates of
 
exchange
available to that person at
 
the time of its receipt
 
of that Sum.
(b)
 
ABB
 
and
 
each
 
Borrower waives
 
any
 
right
 
it
 
may
 
have in
 
any
 
jurisdiction
 
to
 
pay any
amount under
 
the Finance
 
Documents in
 
a currency
 
or currency
 
unit other than
 
that in
which it is expressed to be payable.
15.2
Other indemnities
ABB
 
shall
 
indemnify
 
each
 
Lender
 
upon
 
presentation
 
of
 
duly
 
documente
d
evidence
thereof against any cost, loss or liability
 
directly incurred by that Lender
 
as a result of:
 
(a)
 
the occurrence of any Event
 
of Default (but excluding
 
any costs of enforcement
save as provided in Clause 17.3 (
Enforcement costs
));
 
(b)
 
a
 
failure
 
by
 
ABB
 
or
a
Borrower
 
to
 
pay
 
any
 
amount
 
due
 
under
 
a
 
Finance
Document on
 
its due
 
date, including
 
without limitation,
 
any cost,
 
loss or
 
liability arising
as a result of Clause 28 (
Sharing among the Lenders
);
(c)
 
funding,
 
or
 
making
 
arrangements
 
to
 
fund,
 
its
 
participation
 
in
 
an
 
Advance
 
requested
by a Borrower
 
in a Utilisation
 
Request but
 
not made by
 
reason of
 
the operation
 
of any
 
one
or more of the provisions
 
of this Agreement (other than by reason of default, negligence
or wilful misconduct by that Lender alone);
 
or
 
(d)
 
an
 
Advance
 
(or
 
part
 
of
 
an
 
Advance)
 
not
 
being
 
prepaid
 
in
 
accordance
 
with
 
a
notice of prepayment given by a Borrower.
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15.3
Indemnity to the Facility Agent
 
ABB
 
shall
 
promptly
 
indemnify
 
the
 
Facility
 
Agent,
 
upon
 
presentation
 
of
 
duly
documented evidence thereof,
 
against any
 
reasonable
 
cost, loss
 
or liability
 
properly and
 
directly
incurred by the Facility Agent (acting
 
reasonably) as a result of:
(a)
 
investigating any event which it reasonably
 
believes is a Default; or
(b)
 
entering into or performing
 
any foreign exchange contract
 
for the purposes
 
of
Clause 6 (
Optional Currencies
); or
(c)
 
acting
 
or
 
relying
 
on
 
any
 
notice,
 
request
 
or
 
instruction
 
which
 
it
 
reasonably
believes (after due enquiry)
 
to be genuine, correct
 
and appropriately
 
authorised.
 
 
16.
MITIGATION BY THE LENDERS
16.1
Mitigation
(a)
 
Each Finance Party shall, in consultation with
 
ABB, take all reasonable steps
 
to mitigate
any circumstances which
 
arise and which
 
would result in any
 
amount becoming
 
payable
 
under
 
or
 
pursuant
 
to,
 
or
 
cancelled
 
pursuant
 
to,
 
any
 
of
 
Clause 8.
1
(
Lender Illegality
),
Claus
e
1
3
(
Tax
Gros
s
Up
 
an
d
Indemnities
)
 
or Clause 14.
1
(
Increased
 
costs
)
 
or which
would result
 
in any
 
increased amount being
 
payable
 
under
 
this
 
Agreement
 
by
 
reason
of
 
a
 
change
 
in
 
the
 
reserve requirements
 
imposed
 
by
 
the
 
European
 
Central
 
Bank
after
 
the
 
date
 
of
 
this
 
Agreement including (but not
 
limited to) transferring
 
its rights and
obligations under
 
the
 
Finance
 
Documents
 
to
 
another
 
Affiliate
 
or
 
Facility
 
Office
 
(in
each
 
case in accordance with the terms hereof)
 
and, in such circumstances a Lender
 
will,
at
 
the
 
request
 
of
 
ABB
 
but
 
subject
 
to
 
ABB
 
indemnifying
 
it
 
for
 
the
 
costs
 
of so
 
doing,
transfer
 
its
 
rights
 
and
 
obligations
 
under
 
the
 
Finance Documents
 
to another
 
Lender.
 
(b)
 
Paragraph (a)
 
above
 
does not
 
in any way limit
 
the obligations of the Obligors
under the Finance Documents.
 
16.2
Limitation of liability
(a)
 
ABB
 
shall
 
indemnify
 
each
 
Finance
 
Party,
 
upon
 
presentation
 
of
 
duly
 
documented
evidence
 
thereof,
 
for
 
all
 
costs
 
and
 
expenses reasonably
 
and
 
directly incurred
 
by
 
that
Finance Party as a result of steps
 
taken by it under Clause 16.1
 
(
Mitigation
).
(b)
A
Finance Party
 
is
 
not obliged
 
to take
 
any steps
 
under Clause
 
16.1 (
Mitigation
) (other
than a transfer of its
 
rights and obligations to another Lender where ABB indemnifies it
for the cost of so doing)
 
if, in the opinion
 
of that Finance Party (acting reasonably),
 
to do
so could
 
reasonably be expected to be prejudicial
 
to
it.
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17.
COSTS AND EXPENSES
17.1
Transaction expenses
ABB shall, within
 
10 Business Days
 
of demand, pay (subject
 
to presentation of duly
 
documented
 
evidence
 
thereof) the
 
Agents
 
the
 
amount
 
of
 
all
 
costs
 
and
 
expenses (including legal
 
fees)
reasonably and directly incurred
 
by any
 
of them
 
in connection with
 
the negotiation, preparation,
printing, execution and syndication
 
of:
(a)
 
this Agreement and any other documents referred
 
to in this Agreement; and
(b)
 
any other Finance Documents executed after the
 
date of this Agreement.
17.2
Amendment costs
 
If (a) ABB requests an amendment, waiver
 
or consent or (b) an amendment
 
is required
pursuant to Clause 29.10
 
(
Change of currency
), ABB shall,
 
within 3 Business Days of demand,
reimburse the
 
Facility Agent,
 
upon
 
presentation of
 
duly
 
documented
 
evidence thereof,
 
for
 
the
amount of all
 
costs and expenses (including legal
 
fees) reasonably and directly
 
incurred
 
by
 
the
Facility Agent and
 
which have previously been
 
agreed with
 
ABB
 
in
 
responding
 
to,
 
evaluating,
negotiating
 
or
 
complying
 
with
 
that
 
request
 
or requirement.
17.3
Enforcement costs
 
ABB shall, within 3 Business
 
Days of demand, pay to each Finance Party
 
the amount
of all costs
 
and expenses
 
(including legal
 
fees) directly
 
incurred by
 
that Finance
 
Party at any
 
time
after
 
the
 
service
 
of
 
a
 
notice
 
by
 
the
 
Facility
 
Agent
 
under
 
Clause 22.10 (
Acceleration
)
 
in
connection
 
with
 
the
 
enforcement
 
of,
 
or
 
the
 
preservation
 
of
 
any
 
rights
 
under,
 
any
 
Finance
Document.
18.
GUARANTEE AND INDEMNITY
18.1
Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
 
(a)
 
guarantees to each Finance
 
Party punctual performance
 
by each Borrower
 
of all
that Borrower's obligations under the
 
Finance Documents;
 
(b)
 
undertakes with each Finance Party
 
that whenever a Borrower
 
does not pay
 
any
amount
 
when
 
due
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document,
 
the
 
Guarantor
 
shall
 
immediately
 
on
 
demand
 
pay
 
that
 
amount
 
as
 
if
 
it
 
was
 
the principal obligor;
and
(c)
 
agrees
 
with
 
each
 
Finance
 
Party
 
that
 
if
 
any
 
obligation
 
guaranteed
 
by
 
it
 
is
 
or
 
becomes
unenforceable,
 
invalid
 
or
 
illegal,
 
it
 
will,
 
as
 
an
 
independent
 
and
 
primary
 
obligation,
indemnify that
 
Finance Party
 
immediately on
 
demand against
 
any cost, loss or liability
it
 
incurs
 
as
 
a
 
result
 
of
 
a
 
Borrower
 
not
 
paying
 
any
 
amount
 
which
 
would,
 
but for
 
such
unenforceability,
 
invalidity
 
or
 
illegality,
 
have
 
been
 
payable
 
by
 
it
 
under
 
any
 
Finance
Document on
 
the
 
date
 
when it
 
would have
 
been
 
due.
 
The
 
amount
 
payable
 
by
 
the
 
Guarantor
under this
 
indemnity will
 
not exceed
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the amount it would
 
have
 
had
 
to pay under
 
this Clause
 
18 if the
 
amount claimed
 
had been
recoverable on the basis of a guarantee.
18.2
Continuing guarantee
This guarantee
 
is a
 
continuing guarantee
 
and will
 
extend to
 
the ultimate
 
balance of
 
sums
payable by any Borrower
 
under
 
the Finance Documents,
 
regardless of any
 
intermediate
 
payment
or discharge in whole or in part.
18.3
Reinstatement
If any discharge, release or arrangement (whether in respect
 
of the obligations of any
Borrower or any security
 
for those obligations or otherwise)
 
is made by a Finance
 
Party in whole
or in part on the basis
 
of any payment, security or other disposition
 
which is avoided
 
or
 
must
 
be
restored
 
in
 
insolvency,
 
liquidation,
 
administration
 
or
 
otherwise, without limitation, then
 
the
liability of the Guarantor under this Clause 18
 
will continue or be
 
reinstated as
 
if the
 
discharge,
release or arrangement had not occurred.
18.4
Waiver of defences
 
The obligations of the Guarantor under
 
this Clause 18 will not be affected by any act,
omission, matter or thing which, but for this Clause,
 
would reduce, release or prejudice
 
any of
 
its
obligations under
 
this Clause
 
18 (without
 
limitation and
 
whether or
 
not known
 
to it or any Finance
Party) including:
(a)
 
any time, waiver or consent granted to, or composition
 
with, any Borrower or
other person;
(b)
 
the
 
release
 
of
 
any
 
Borrower
 
or
 
any
 
other
 
person
 
under
 
the
 
terms
 
of
 
any
composition or arrangement with any
 
creditor of any member of the
 
Group;
 
(c)
 
the taking, variation,
 
compromise, exchange,
 
renewal or
 
release of, or
 
refusal or
neglect to
 
perfect, take
 
up or enforce,
 
any rights
 
against, or security
 
over assets of, any
Borrower or other person or any non-presentation or non-observance
 
of any formality
 
or
other requirement
 
in respect of any
 
instrument or any
 
failure to realise the
 
full value
 
of
any security;
(d)
 
any incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of a Borrower
 
or any other person;
(e)
 
any
 
amendment,
 
novation,
 
supplement,
 
extension,
 
restatement
 
(however
fundamental and whether
 
or not
 
more onerous)
 
or replacement of any
 
Finance Document
or any other document
 
or security including
 
without limitation
 
any change in the purpose
of,
 
any
 
extension of
 
or
 
any increase
 
in
 
any
 
facility
 
or the
 
addition
 
of
 
any new
 
facility
under any Finance
 
Document or other
 
document or security;
(f)
 
any
 
unenforceability,
 
illegality
 
or
 
invalidity
 
of
 
any
 
obligation
 
of
 
any
 
person
under any Finance Document
 
or any other document or security; or
 
(g)
 
any insolvency or similar
 
proceedings.
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18.5
Immediate recourse
 
The Guarantor waives
 
any right it
 
may have of
 
first requiring any
 
Finance Party
 
(or any
trustee or agent on its behalf)
 
to proceed against or enforce any other rights or security or
 
claim
payment
 
from
 
any
 
person
 
before
 
claiming
 
from
 
the
 
Guaranto
r
under
 
this Clause 18.
 
This
waiver applies irrespective of any law or any provision
 
of a Finance Document to the contrary.
18.6
Appropriations
 
Until
 
all
 
amounts
 
which
 
may
 
be
 
or
 
become
 
payable
 
by
 
the
 
Borrowers
 
under
 
or
 
in
connection
 
with
 
the
 
Finance
 
Documents
 
have
 
been
 
irrevocably
 
paid
 
in
 
full,
 
each
 
Finance
Party (or any trustee or agent on its behalf) may:
(a)
 
refrain from applying or enforcing any other moneys, security or
 
rights
 
held or received
by that Finance Party (or any
 
trustee or agent on its behalf) in
 
respect of those amounts,
or apply
 
and enforce
 
the same
 
in such
 
manner and
 
order as it sees
 
fit (whether
 
against
those amounts or otherwise) and
 
the Guarantor shall not
 
be entitled
 
to the benefit of the
same; and
(b)
 
hold
 
in
 
an
 
interest-bearing
 
suspens
e
account
 
any
 
moneys
 
received
 
from
 
the
Guarantor or on account of the Guarantor's liability under
 
this Clause.
 
18.7
Deferral of Guarantor's
 
rights
Until
 
all
 
amounts
 
which may
 
be or
 
become
 
payable by
 
the
 
Borrowers
 
under
 
or
 
in
 
connection
with
 
the
 
Finance
 
Document
s
have
 
been
 
irrevocably
 
paid
 
in
 
full
 
or
 
the Facility
 
Agent
otherwise directs,
 
the
 
Guarantor will
 
not
 
exercise any
 
rights
 
which it may
 
have
 
by
 
reason
 
of
 
performance
 
by
 
it
 
of
 
its
 
obligations
 
under
 
the
 
Finance Documents or
 
by reason
 
of any
amount being payable
,
or liability arising, under this Clause
 
18:
(a)
 
to be indemnified by a Borrower;
 
(b)
 
to take the benefit (in whole or in part and whether
 
by way of subrogation or
otherwise) of
 
any rights
 
of the
 
Finance Parties
 
under the Finance Documents or
 
of any
other
 
guarantee
 
or
 
security
 
taken
 
pursuant
 
to,
 
or
 
in
 
connection
 
with,
 
the
 
Finance
Documents by any Finance Party;
(c)
 
to
 
bring
 
legal
 
or
 
other
 
proceedings for
 
an
 
order requiring
 
any
 
Borrower
 
to
 
make any
payment,
 
or
 
perform
 
any
 
obligation,
 
in
 
respect
 
of
 
which
 
it
 
has
 
given
 
a guarantee,
 
undertaking
 
or
 
indemnity
 
under
 
Clause 18.1 (
Guarantee
 
and
indemnity
);
(d)
 
to exercise any right of set-off against any Borrower;
 
and/or
 
(e)
 
to claim or
 
prove as
 
a creditor of
 
any Borrower
 
in competition
 
with any Finance
Party.
 
If the Guarantor receives any benefit, payment or distribution
 
in relation to such
 
rights
it shall
 
hold that
 
benefit, payment
 
or distribution to
 
the extent
 
necessary to
 
enable all
 
amounts
which
 
may
 
be
 
or
 
become
 
payable
 
to
 
the
 
Finance
 
Parties
 
by
 
the
 
Borrowers
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under or
 
in connection with
 
the Finance Documents
 
to be repaid in
 
full on trust for
 
the Finance
Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent
may direct
 
for application in accordance
 
with Claus
e
29 (
Payment
Mechanics
).
18.8
Additional security
 
This guarantee
 
is in addition
 
to and is not
 
in any way
 
prejudiced by any
 
other guarantee
or security now or subsequently held by any Finance
 
Party.
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SECTION 7
REPRESENTATIONS,
 
UNDERTAKINGS AND EVENTS OF DEFAULT
19.
REPRESENTATIONS
 
ABB (in respect of itself and, where specified, each
 
Group Company or each Material
Subsidiary)
 
and
 
each
 
Borrower
 
(in
 
respect
 
of
 
itself)
 
makes
 
the
 
representations
 
and
 
warranties
set out in
 
this Clause
 
19 to each
 
Finance Party on
 
the date of
 
this Agreement.
19.1
Status
 
(a)
 
It is a corporation, duly
 
incorporated and validly
 
existing under the law of its
jurisdiction of incorporation.
 
(b)
 
It
 
and
 
each Group Company has the
 
power to
 
own its
 
assets and carry
 
on its
business as it is being conducted.
 
19.2
Binding obligations
The obligations
 
expressed to be assumed
 
by it in each Finance Document are,
 
subject to the
Reservations, legal,
 
valid, binding and enforceable obligations.
19.3
Non-conflict with other obligations
 
The
 
entry
 
into
 
and
 
performance
 
by
 
it
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the
Finance Documents to which it is a party
 
do not conflict with:
(a)
 
any law or regulation applicable to it;
(b)
 
its constitutional documents; or
 
(c)
 
any agreement or instrument
 
binding
 
upon it or any
 
Group Company or any of
their assets,
and, in the case of paragraph (c) on any
 
repetition after the date
 
of this Agreement, in a
manner that could reasonably be expected to have a Material Adverse Effect.
 
19.4
Power and authority
It has the power
 
to enter into, perform
 
and
 
deliver, and has taken all
 
necessary action
 
to
 
authorise
its
 
entry
 
into,
 
performance
 
and
 
delivery
 
of,
 
the
 
Finance
 
Documents
 
to which
 
it is a party and
the transactions
 
contemplated by those Finance Documents.
19.5
Validity
 
and admissibility in evidence
 
All Authorisations required by ABB and each Borrower (including,
 
in the case of any
Dutch Borrower, and if applicable, any works council advice):
 
(a)
 
to
 
enable
 
it
 
lawfully
 
to
 
enter
 
into,
 
exercise
 
its
 
rights
 
and
 
comply
 
with
 
its
obligations in the Finance Documents
 
to which it is a party; and
 
(b)
 
to make the Finance Documents to
 
which it is a party
 
admissible in evidence
 
in
its jurisdiction of incorporation,
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have been obtained or effected and are in full force
 
and effect.
19.6
Insolvency
Neither
 
it
 
nor
 
any
 
Material
 
Subsidiary
 
has
 
taken
 
any
 
action
 
nor
 
(s
o
far
 
it
 
is
 
aware,
 
having
made
 
all
 
due
 
enquiry)
 
have
 
any
 
steps
 
been
 
taken
 
or
 
legal
 
proceedings
 
been started
 
against it
for winding-up, dissolution or re-organisation, the enforcement of any Security over its assets or
for
 
the
 
appointment
 
of
 
a
 
receiver,
 
administrative
 
receiver,
 
or
 
administrator,
 
trustee
 
or
 
similar
officer of it or any of its assets.
19.7
No default
(a)
 
No Default is continuing.
(b)
 
No other event
 
or circumstance is
 
outstanding which
 
constitutes a default
 
under any
 
other
agreement or instrument which is binding on
 
a Group Company or to which their assets
are subject
 
which has
 
had or
 
could reasonably
 
be expected to have
 
a Material
 
Adverse
Effect.
19.8
No misleading information
(a)
 
Any
 
factual
 
information
 
contained
 
in
 
any
 
document
 
forming
 
part
 
of
 
the
Information Package was
 
true and accurate in
 
all material respects as at
 
the date
 
of the
relevant document.
(b)
 
Nothing
 
has
 
occurred
 
or
 
been
 
omitted
 
from
 
the
 
Information
 
Package
 
and
 
no
information has
 
been given
 
or withheld
 
that results in
 
the information
 
contained in
 
the
Information Package being untrue or misleading in any material respect as at the date of
the relevant document.
19.9
Financial statements
(a)
 
The
 
Original
 
Financial
 
Statements
 
were
 
prepared
 
in
 
accordance
 
with
 
GAAP
consistently applied.
(b)
 
The
 
Original
 
Financial
 
Statement
s
fairly
 
present
 
in
 
all
 
material
 
respects
 
the
consolidated financial
 
condition and
 
operations of
 
the Group
 
or the
 
financial
 
condition
and
 
operations
 
of
 
the
 
relevant
 
Original
 
Obligor
 
in
 
respect
 
of
 
the relevant financial
year.
(c)
 
Each
 
of
 
the
 
latest
 
audited
 
consolidated
 
financial
 
statements
 
required
 
to
 
be
 
delivered
under
 
paragrap
h
(b
)
of
 
Claus
e
20.
1
(
Financial
 
statements
)
 
fairly presents
 
in all
material respects the
 
financial position
 
of the
 
Group as
 
at the
 
date to
 
which
 
they
 
were
prepared and for the period then ended.
(d)
 
Each
 
of
 
the
 
latest
 
set
 
of
 
unaudited
 
consolidated
 
financial
 
statements
 
required
 
to
 
be
delivered
 
under
 
paragrap
h
(c)
 
of Claus
e
20.
1
(
Financial
 
statements
)
 
fairly presents
 
in
all
 
material
 
respects the
 
financial
 
condition
 
of the
 
Group as
 
at
 
the date to
 
which they
were prepared
 
and for the period then ended.
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19.10
No Material Adverse
 
Effect
Since
 
the
 
date
 
of
 
the
 
most recent
 
annual audited
 
accounts of
 
the
 
Group, no
 
event
 
or
events have occurred which have had a
 
Material Adverse Effect.
 
19.11
Pari passu ranking
Its payment obligations under the Finance Documents rank at least
pari passu
with the claims of
all its other unsecured and unsubordinated creditors,
 
except for obligations
 
mandatorily preferred
by law applying
 
to companies generally.
19.12
No proceedings pending or threatened
 
No litigation, arbitration or
 
administrative proceedings
 
of or before any court, arbitral
body or agency
 
which could reasonably be expected to
 
have a Material Adverse Effect have (to
the
 
best of its
 
knowledge and belief)
 
been started o
r
threatened against any Group Company.
19.13
Environmental Compliance
 
Each Group Company has complied in all respects
 
with all Environmental Law save
 
to
the
 
extent
 
that non-compliance
 
could
 
not
 
reasonably
 
be
 
expected
 
to
 
have
 
a
 
Material
 
Adverse
Effect.
19.14
Sanctions
(a)
 
No Obligor is and, to the knowledge of the Obligors,
 
none of their respective
directors or executive officers are, a Restricted
 
Party.
(b)
 
Each
 
Obligor
 
has
 
instituted
 
and
 
maintains,
 
and
 
will
 
continue
 
to
 
maintain,
policies
 
and
 
procedures
 
reasonably designed
 
to
 
promote
 
and
 
achieve
compliance with Economic
 
Sanctions Laws.
19.15
Anti-corruption and anti-bribery laws and regulations
No Obligor nor, to the best of the knowledge of the Obligors, none of their respective
director
s
or
 
executive
 
officers,
 
in
 
connection
 
with
 
this
 
Facility
 
and/or
 
the
 
proceeds arising
hereunder, engages in
 
any activity or conduct which
 
would cause any
 
Lender to be in breach of
any applicable anti-bribery
 
or anti-corruption
 
law or regulation.
 
Each Obligor
 
has
 
instituted
 
and
maintains,
 
and
 
will
 
continue
 
to
 
maintain,
 
policies
 
and procedures
 
reasonably
 
designed
 
to
promote
 
and
 
achieve
 
compliance with
 
applicable anti-corruption
 
laws.
19.16
Repetition
(a)
 
The
 
representations
 
and
 
warranties
 
in
 
Claus
e
19.
1
(
Status
)
 
to
 
Claus
e
19.4
(
Power
 
and
 
authority
),
 
Clause
 
19.14
 
(
Sanctions
)
 
and
 
Clause
 
19.15
 
(
Anti-
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corruption and
 
anti-bribery
 
laws and regulations
) are
 
deemed to be
 
made
 
by
 
each
Obligor by reference to the facts and circumstances then existing:
(i)
 
in the case of
 
Clause 19.1 (
Status
) to Clause 19.4 (
Power and authority
), on the
date of each Utilisation Request
 
and the first day of each Interest
 
Period; and
(ii)
 
in
 
the
 
case
 
of
 
Clause
 
19.14
 
(
Sanctions
)
 
and
 
Clause
 
19.15
 
(
Anti-
corruption and
 
anti-bribery
 
laws and regulations
), on the
 
date of
 
each Utilisation
Request.
20.
INFORMATION UNDERTAKINGS
 
The undertakings in this
 
Clause 20 remain in force
 
from the date of
 
this Agreement for
so long
 
as any
 
amount is
 
outstanding under
 
the Finance
 
Documents or
 
any Commitment
 
is in
force.
20.1
Financial statements
 
(a)
 
ABB and each Borrower shall supply to the Facility
 
Agent (in sufficient
 
copies
for all
 
the Lenders,
 
if the
 
Facility Agent
 
so requests)
 
as
 
soon as
 
the same
 
become
 
available,
but in any event within
 
120 days after the
 
end of each of
 
its financial
 
years (in the case of
ABB)
 
and
 
within
 
150
 
days
 
(in
 
the
 
case
 
of
 
each
 
Borrower), its
 
statutory
 
audited
 
unconsolidated
 
annual
 
financial
 
statements
 
for
 
that financial year
 
(if prepared
 
by
such Borrower).
(b)
 
ABB shall
 
supply to
 
the
 
Facility Agent
 
(in sufficient
 
copies
 
for
 
all
 
the Lenders, if
 
the
Facility Agent so
 
requests) as soon
 
as the
 
same become available,
 
but in any event
 
before
the
 
date
 
falling
 
120
 
days
 
after
 
the
 
end
 
of
 
each
 
of
 
its
 
financial
 
years,
 
its
 
audited
consolidated annual financial statements.
(c)
 
ABB shall
 
supply to
 
the
 
Facility
 
Agent (in
 
sufficient copies
 
for
 
all the
 
Lenders, if
 
the
Facility Agent so
 
requests) as soon
 
as the
 
same become available,
 
but in any event
 
within
45
 
days
 
after
 
the
 
end
 
of
 
each
 
quarter of
 
each
 
of
 
its
 
financial
 
years
 
(except
 
the
 
fourth
quarter) its unaudited
 
consolidated financial statements for that quarter
 
and the
 
year-to-
date period then ended.
20.2
Requirements as to financial statements
 
Each
 
Borrower
 
shall
 
procure
 
that
 
each
 
set
 
of
 
financial
 
statements
 
delivered
 
by
 
it
pursuant to Clause 20.1 (
Financial statements
) is prepared using GAAP.
 
20.3
Information:
 
miscellaneous
ABB shall supply to the Facility Agent
 
(in sufficient copies for all the Lenders,
 
if the Facility
Agent so requests):
 
(a)
 
all documents dispatched by it to its shareholders (or
 
any class of them) or its
creditors generally at the same time as they are dispatched;
 
(b)
 
promptly upon becoming
 
aware of them,
 
the details
 
of any litigation,
 
arbitration
or administrative
 
proceedings
 
which are
 
commenced
 
against one
 
or more
 
Group
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Companies and which
 
could reasonably be
 
expected to have
 
a Material Adverse
 
Effect;
and
(c)
 
promptly,
 
such
 
further
 
information
 
regarding
 
the
 
financial
 
condition,
 
business
 
and
operations of any Obligor or any other
 
Material Subsidiary as any Finance Party (acting
through the Facility
 
Agent) may reasonably request.
20.4
Notification of default
ABB and each Borrower shall notify the
 
Facility
 
Agent of any Default
 
(and the steps,
if any,
 
being taken to remedy
 
it) promptly upon becoming aware of its occurrence.
 
20.5
Material Subsidiaries
ABB shall supply to the Facility Agent, with
 
each set of financial
 
statements delivered
 
by it
pursuant to paragraph (b) of Clause
 
20.1 (
Financial statements
), either:
(a)
 
a complete and up to date list
 
of Material Subsidiaries
 
at that time; or
(b)
 
written confirmation that
 
the list of
 
Material Subsidiaries
 
contained in Schedule
8 (
Material Subsidiaries
) is complete and
 
up to date at that time.
20.6
Use of Websites
(a)
 
Any
 
Obligor
 
may
 
satisfy
 
its
 
obligation
 
under
 
this
 
Agreement
 
to
 
deliver
 
any
information in
 
relation
 
to those
 
Lenders (the
 
"
Website Lenders
") who
 
accept
 
this method
of
 
communication by posting this information
 
onto
 
an
 
electronic
 
website designated
 
by
ABB and
 
the Facility Agent (the
 
"
Designated Website
")
if:
(i)
 
the Facility
 
Agent expressly agrees (after consultation with each of the Lenders)
that
 
it
 
will
 
accept communication
 
of
 
the information
 
by
 
this
 
method;
(ii)
 
both
 
ABB and
 
the Facility
 
Agent are
 
aware of the
 
address of
 
and
 
any
relevant password specifications for the Designated
 
Website; and
 
(iii)
 
the information is in a format previously agreed between
 
ABB and the
Facility Agent.
 
If
 
any
 
Lender
 
(a
 
"
Paper
 
Form
 
Lender
")
 
does
 
not
 
agree
 
to
 
the
 
delivery
 
of
information electronically
 
then the
 
Facility Agent
 
shall notify ABB
 
accordingly
 
and ABB
shall supply
 
the
 
information
 
to the
 
Facility
 
Agent
 
(in sufficient
 
copies
 
for each
 
Paper Form
Lender) in paper
 
form.
 
In any event
 
ABB
 
shall supply
 
the
 
Facility Agent
 
with at
 
least one
copy in paper form of any information
 
required
 
to be provided by it.
(b)
 
The Facility
 
Agent shall
 
supply each
 
Website Lender with
 
the address
 
of and
 
any
 
relevant
password
 
specifications
 
for
 
the
 
Designated
 
Website
 
following designation of
 
that
website by ABB and
 
the Facility Agent.
 
The Facility Agent
 
shall
 
notify
 
each
 
Website
 
Lender
 
when
 
any
 
document
 
is
 
posted
 
to
 
the Designated
 
Website.
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(c)
 
ABB shall promptly upon becoming aware of its occurrence
 
notify the Facility
Agent if:
(i)
 
the Designated Website cannot be accessed due to technical failure;
(ii)
 
the password specifications for the Designated
 
Website change;
(iii)
 
any
 
new
 
information
 
which
 
is
 
required
 
to
 
be
 
provided
 
under
 
this
Agreement is posted onto the Designated
 
Website;
(iv)
 
any existing
 
information which
 
has
 
been provided
 
under this
 
Agreement
and posted onto the Designated Website is amended;
 
or
(v)
 
ABB becomes
 
aware
 
that
 
the
 
Designated Website
 
or
 
any
 
information
posted
 
onto
 
the
 
Designated
 
Website
 
is
 
or
 
has
 
been
 
infected
 
by
 
any
electronic virus or similar software.
If
 
ABB notifies the
 
Facility Agent under
 
paragrap
h
(c)(i
)
or paragrap
h
(c)(v)
 
above, all
information to
 
be provided
 
by
 
ABB under
 
this
 
Agreement
 
after the
 
date of
 
that notice
shall
 
be
 
supplied
 
in
 
paper form
 
unless
 
and
 
until
 
the Facility
 
Agent
 
and
 
each
 
Website
Lender
 
is
 
satisfied
 
that
 
the
 
circumstances
 
giving
 
rise
 
to
 
the
 
notification
 
are no
 
longer
continuing.
(d)
 
Any
 
Website
 
Lender may
 
request, through
 
the
 
Facility Agent,
 
one paper
 
copy of
 
any
information
 
required
 
to
 
b
e
provided
 
under
 
this
 
Agreement
 
which
 
is posted onto the
Designated Website.
 
ABB shall
 
comply with any
 
such request within
 
ten Business
 
Days.
20.7
 
"
Know your customer
"
checks
(a)
 
If:
(i)
 
the
 
introduction
 
of
 
or
 
any
 
change
 
in
 
(or
 
in
 
the
 
interpretation,
administration
 
or
 
application
 
of)
 
any
 
law
 
or regulation
 
made
 
after
 
the date of
this Agreement;
(ii)
 
any
 
change
 
in
 
the
 
status
 
of
 
an
 
Obligor
 
or
 
the
 
composition
 
of
 
the
shareholders of an Obligor after the date
 
of this Agreement;
 
or
(iii)
 
a proposed assignment or
 
transfer by a Lender
 
of any of
 
its rights and/or
obligations under this Agreement to
 
a party that is not a Lender
 
prior to such
assignment or transfer,
obliges any Agent
 
or any Lender
 
(or, in the case
 
of paragraph (iii) above,
 
any prospective
new
 
Lender)
 
to
 
comply
 
with
 
"know
 
your
 
customer"
 
or
 
similar
 
identification
procedures in circumstances
 
where the necessary
 
information is not already available to
it, each Obligor shall promptly upon the request
 
of that Agent or
 
any
 
Lender
 
supply,
 
or
procure the
 
supply of
 
(t
o
the extent
 
that the relevant
 
information is
 
not already
 
available
to
 
the
 
applicable
 
Agent
 
or
 
Lender),
 
such
 
documentation
 
and
 
other
 
evidence
 
as
 
is
reasonably requested by
 
that Agent (for itself or on behalf of any
 
Lender) or any Lender
(for itself or, in the case of the event described in paragraph
 
(iii) above, on behalf of any
prospective new
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Lender)
 
in
 
order
 
for
 
the
 
applicable
 
Agent,
 
such
 
Lender
 
or,
 
in
 
the
 
case
 
of
 
the event
described
 
in
 
paragraph
 
(iii)
 
above,
 
any
 
prospective
 
new
 
Lender
 
to
 
carry
 
out
 
and
 
be
satisfied
 
with
 
the
 
results
 
of
 
all
 
necessary
 
"know
 
your
 
customer"
 
or other
 
checks
 
in
relation to
 
any relevant
 
person pursuant
 
to the
 
transactions
 
contemplated in
 
the Finance
Documents.
(b)
 
Each Lender shall promptly upon the request of any Agent
 
supply, or procure the supply
of, such documentation
 
and other evidence
 
as is reasonably
 
requested by
 
that
 
Agent (for
itself)
 
in
 
order for
 
that
 
Agent to
 
carry
 
out
 
and
 
be
 
satisfied with
 
the
 
results
 
of
 
all
necessary
 
"know
 
your
 
customer"
 
or
 
other
 
checks
 
on Lenders
 
or
 
prospective new
Lenders pursuant to the transactions contemplated in the Finance Documents.
(c)
 
ABB shall, by not
 
less than 10 Business Days' prior written notice to the Facility Agent,
notify the
 
Facility Agent
 
(which shall
 
promptly notify
 
the Lenders) of
 
its
 
intention
 
to
request
 
that
 
one
 
of
 
its
 
Subsidiaries
 
becomes
 
an
 
Additional Borrower pursuant
 
to
Clause 25 (
Changes to the Obligors
).
(d)
 
Following
 
the
 
giving
 
of
 
any
 
notice
 
pursuant
 
to
 
paragrap
h
(c
)
above,
 
if
 
the
 
accession
of
 
such
 
Additional
 
Borrower
 
obliges any
 
Agen
t
or
 
any
 
Lender to comply
 
with
 
"know
your
 
customer"
 
or
 
similar
 
identification
 
procedures
 
in circumstances
 
where
 
the
necessary
 
information
 
is
 
not
 
already
 
available
 
to
 
it, ABB
 
shall
 
promptly
 
upon
 
the
request of
 
that Agent or any Lender supply, or
 
procure the
 
supply of,
 
such documentation
and other
 
evidence as is reasonably
 
requested by that
 
Agent (for itself
 
or on behalf
 
of any
Lender) or any
 
Lender (for itself
 
or on behalf
 
of any prospective
 
new Lender)
 
in order
 
for
that Agent or
 
such Lender
 
or any
 
prospective
 
new Lender
 
to carry
 
out and
 
be satisfied
 
with
the
 
results
 
of
 
all
 
necessary
 
"know
 
your
 
customer"
 
or
 
other
 
checks
 
in
 
relation
 
to
 
any
 
relevant
 
person
 
pursuant
 
to
 
the
 
accession
 
of
 
such
 
Subsidiary
 
to
 
this Agreement
 
as
an Additional Borrower.
21.
GENERAL UNDERTAKINGS
The undertakings in this
 
Clause 21 remain in force
 
from the date of
 
this Agreement for
so long
 
as any
 
amount is
 
outstanding under
 
the Finance
 
Documents or
 
any Commitment
 
is in
force.
21.1
Authorisations
Each Obligor
 
shall promptly
 
obtain, comply
 
with and
 
do all
 
that is
 
necessary
 
to maintain
in
 
full force
 
and
 
effect
 
any Authorisation
 
(including,
 
in
 
the
 
case
 
of
 
any
 
Dutch
 
Borrower, any
applicable
 
works
 
council
 
advice)
 
required
 
under
 
any
 
law
 
or
 
regulation
 
of
 
its
 
jurisdiction of
incorporation to enable
 
it to perform
 
its obligations under
 
the Finance Documents
 
and
 
to
 
ensure
 
the
 
legality,
 
validity
 
and
 
subject
 
to
 
the
 
Reservations enforceability
 
or
 
admissibility
 
in
evidence in
 
its
 
jurisdiction of
 
incorporation
 
of
 
any
 
Finance Document.
21.2
Compliance with laws
Each Obligor shall comply in all respects
 
with all laws (including, without
 
limitation,
Environmental
 
Law,
 
ERISA
 
and
 
the
 
Dutch
 
Financial
 
Supervision
 
Act
 
(
Wet
 
op
 
het
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financieel toezicht
)
)
to which it may be
 
subject, if failure so to comply
 
would have
 
a Material
Adverse Effect.
21.3
Negative pledge
(a)
 
Neither
 
ABB
 
nor
 
any
 
Borrower
 
shall
 
(and
 
ABB
 
shall
 
procure
 
that
 
no
 
other
Group
 
Company will) create
 
or permit to subsist any Security over
 
any
 
of its
 
assets.
(b)
 
Paragraph (a) above does not apply to:
(i)
 
any
 
Security
 
over any bank
 
account in
 
favour of the bank
 
with which
such account
 
is held, in
 
each case
 
granted by
 
any Group Company
 
in the
 
ordinary
course of
 
its
 
banking arrangements
 
for
 
the purpose
 
of
 
netting
 
debit and
 
credit
balances;
(ii)
 
any Security arising by operation of
 
law;
 
(iii)
 
any Security
 
contained in a
 
contract for
 
sale or supply
 
entered into in
 
the
ordinary course of
 
trading, where
 
such Security
 
is granted
 
to such
 
seller
 
or, as
 
the
case may be,
 
supplier
 
and is limited
 
in recourse to
 
the asset sold or, as the case
may be, supplied;
 
(iv)
 
any Security over or affecting any asset
 
acquired by a Group
 
Company
after the date
 
of this Agreement if:
 
(A)
 
the Security was not created in
 
contemplation of the acquisition
of that asset by a Group Company;
 
and
 
(B)
 
the
 
principal
 
amount
 
secured
 
has
 
not
 
been increased
 
in
contemplation
 
of,
 
or
 
since
 
the
 
acquisition
 
of
 
that
 
asset
 
by
 
a Group
Company;
(v)
 
any Security
 
over or
 
affecting any
 
asset of
 
a Group
 
Company after
 
the date
 
of
this
 
Agreement,
 
where
 
the
 
Security
 
is
 
created
 
prior
 
to the
 
date
 
on which
 
that
Company becomes
 
a Group Company, if:
(A)
 
the Security was not created in contemplation
 
of the acquisition
of that company; and
(B)
 
the principal amount secured has
 
not increased in contemplation
of or since the acquisition of
 
that company;
 
(vi)
 
any
 
Security
 
provided
 
by
 
one
 
Grou
p
Company
 
(not
 
being
 
ABB)
 
to
another Group Company;
 
(vii)
 
any Security created in respect of
 
the Securitisations
provided that
the
amounts so secured do not at
 
any time exceed USD
 
1,500,000,000 (or its
equivalent in another
 
currency or currencies);
 
(viii)
 
any Security
 
over the assets
 
of a Project
 
Company, any shareholder
 
loan made
 
to a Project Company or the shares in a Project Company where
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such
 
Security
 
was
 
created
 
for
 
the
 
purpose
 
of
 
securing
 
Indebtedness
 
incurred
to acquire
 
and/or develop
 
the assets
 
of such
 
Project Company
 
and where
 
such
Indebtedness constitutes
 
Project Finance
 
Indebtedness of
 
such Project
 
Company;
(ix)
 
any Security
 
securing Indebtedness incurred
 
by a
 
Group Company
 
to
 
refinance
Indebtedness
 
secured
 
by
 
Security
 
of
 
the
 
type
 
referred
 
to
 
in paragraphs
 
(iv) or
(v) above where
 
such first-mentioned
 
Security is
 
over
 
the
 
same
 
asset
 
and
 
is
 
of
 
the
 
same
 
type
 
as
 
such
 
second-mentioned
 
Security and
 
the conditions referred
to in
 
paragraph
 
(iv)
 
or,
 
as the
 
case may be,
 
(v)
 
above continue
 
to
 
be satisfied,
mutatis mutandis
; and
(x)
 
any
 
Security
 
not
 
falling
 
within
 
any
 
of
 
paragraph
s
(i
)
t
o
(ix
)
above
 
inclusive
in respect of
 
assets having an aggregate
 
value not exceeding
 
10 per cent. of
 
the
aggregate
 
value
 
of
 
the
 
gross
 
assets
 
of
 
the
 
Group
 
(as
 
set
 
out
 
in
 
ABB's
 
most
recently published
 
annual
 
audited
 
consolidated
 
financial statements).
21.4
Claims Pari Passu
ABB shall
 
ensure that
 
at all
 
times the
 
claims of
 
the Finance
 
Parties against
 
each Obligor
under the Finance Documents rank
 
at least
pari passu
with the claims of
 
all its other unsecured
an
d
unsubordinated
 
creditors
 
except for
 
obligations
 
mandatorily
 
preferred by law applying
 
to
companies generally.
21.5
Merger
No
 
Obligor
 
shall
 
enter
 
into
 
any
 
amalgamation,
 
demerger,
 
merger
 
or
 
corporate
reconstruction
 
save
 
where
 
the
 
Facility
 
Agent
 
is
 
satisfied,
 
acting
 
reasonably,
 
that
 
the relevant
Obligor's obligations
 
under the
 
Finance Documents
 
will continue
 
to be
 
the
 
legal, valid,
 
binding
and
 
(subject to
 
the Reservations)
 
enforceable
 
obligations
 
of
 
the
 
surviving entity.
21.6
Insurance
 
Each
 
Obligor shall
 
(and ABB
 
shal
l
ensure that
 
each Group
 
Company
 
will) maintain
insurances on and in
 
relation to its
 
business and assets with reputable
 
underwriters or insurance
companies
 
against
 
those
 
risks and
 
to the
 
extent
 
as is
 
usual for
 
companies
 
carrying on the
 
same
or substantially
 
similar
 
business
 
in the
 
relevant jurisdiction
 
and taking
 
into account
 
the availability
of insurance generally.
21.7
Restriction on Subsidiary Debt
ABB shall ensure that the aggregate amount of Total Gross Debt other than:
(a)
 
Project Finance Indebtedness;
(b)
 
Indebtedness owed by one Group Company to
 
another Group Company;
(c)
 
amounts borrowed
 
by a
 
finance
 
company which
 
is a
 
Group
 
Company and
 
which
are on-lent, and remain on-lent, to
 
an Obligor;
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(d)
 
amounts
 
borrowed
 
by
 
a
 
Group
 
Company
 
from
 
a
 
bank
 
to
 
which
 
cash-collateral (in
 
a
substantially equivalent amount)
 
has been granted by a Group
 
Company in respect
 
of the
relevant Group Company's
 
obligation to repay such amounts;
 
(e)
 
Indebtedness relating to any leases that
 
are not required to be treated as
 
finance
leases under US GAAP as at the date hereof;
 
(f)
 
any amounts
 
borrowed by a
 
Group Company which
 
constitute Total Gross
 
Debt
to the extent
 
such amounts
 
are borrowed
 
for the
 
purposes
 
of refinancing
 
other borrowings
constituting Total
 
Gross Debt
 
so long as
 
amounts so
 
borrowed are promptly
 
applied in
such manner; and
 
(g)
 
Indebtedness
 
in
 
respect
 
of
 
bonds,
 
commercial
 
paper
 
and/or
 
other
 
debt
instruments issued by Group Companies
 
that are
 
Capital Markets
 
Issuers,
 
of
 
Group
 
Companies
 
which
 
are
 
not
 
Obligors
 
shall
 
not
 
exceed
 
the
 
greater
 
of:
 
(i)
$2,500,000,000;
 
and (ii)
 
7.5
 
per cent.
 
of the
 
total assets
 
of the
 
Group
 
(as reflected
 
in
 
the
 
most recent
audited consolidated
 
annual financial
 
statements delivered
 
by ABB
 
under paragraph
 
(b) of
 
Clause
20.1 (
Financial statements
)).
In
 
this
 
Claus
e
21.7
 
"
Total
 
Gross
 
Debt
"
 
means
 
the
 
aggregate
 
of
 
short-term
 
debt
 
(including
current
 
maturities
 
of
 
long-term
 
debt)
 
and
 
long-term
 
debt
 
as
 
reflected
 
in
 
the
 
most
 
recent
 
unaudited
 
quarterly
 
consolidated
 
financial
 
statements
 
or
 
audited consolidated
 
annual
financial
 
statements
 
delivered
 
by
 
ABB
 
under
 
paragraph
 
(b)
 
or
 
(c) of
 
Clause
 
20.1
 
(
Financial
statements
).
21.8
Change of business
ABB
 
shall
 
procure
 
that
 
no
 
substantial
 
change
 
is
 
made
 
to
 
the
 
business
 
o
f
the
 
Group
which would
 
result in
 
the general
 
nature
 
of the
 
business
 
of the
 
Group,
 
taken as
 
a whole,
 
being other
than the business of power and/or
 
automation technologies, and/or digital industries.
21.9
Economic Sanctions
No Borrower shall lend, invest,
 
contribute or otherwise
 
make available the proceeds
 
of
any Advance in a manner that would violate the Economic
 
Sanctions Laws.
22.
EVENTS OF DEFAULT
Each
 
of
 
the
 
events
 
or
 
circumstances
 
set
 
out
 
in
 
Clause
s
22.
1
(
Non-payment
)
 
t
o
22.9
(
Cessation of business
) inclusive is an Event of Default.
22.1
Non-payment
Any sum due from an Obligor or the Obligors under
 
this Agreement is not paid at the
time, at the place
 
at, and in the currency in
 
which, it is expressed to be
 
payable unless payment is
made within
 
3 Business Days of its due date and
 
the failure to pay is due solely to administrative
error or technical delays in the transmission
 
of funds.
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22.2
Other obligations
 
An Obligor does not comply
 
with any provision of the Finance Documents
 
(other than
those referred to
 
in Clause
 
22.1
 
(
Non-payment
)) and, if
 
the failure
 
to comply is
 
capable
 
of remedy,
it
 
is not
 
remedied
 
within 30
 
days
 
of the
 
Facility
 
Agent
 
giving notice
 
to
 
ABB of
 
the
 
failure
 
to
comply.
22.3
Misrepresentation
Any
 
representation
 
or
 
statement
 
made
 
or
 
deemed
 
(by
 
virtue
 
of
 
Clause
 
19.16
(
Repetition
))
 
to
 
be
 
made
 
by
 
ABB
 
or
 
any
 
Borrower
 
in
 
this
 
Agreement
 
(other
 
than
 
a
representation
 
or
 
statement
 
made or
 
deemed
 
to be
 
made
 
pursuant
 
to
 
Claus
e
19.14
 
(
Sanctions
)
or
 
Clause 19.15
 
(
Anti-corruption and
 
anti-bribery
 
laws an
d
regulations
)) is
 
or proves
 
to
 
have
been incorrect or misleading in any respect when made or deemed to
 
be
 
made
 
and,
 
where
 
the
circumstances
 
making
 
such
 
representation
 
or
 
statement
 
incorrect
 
or
 
misleading
 
are
 
capable
of
 
being
 
altered
 
so
 
that
 
such
 
representation
 
or
 
statement is
 
correct, such circumstances
 
are not
so altered within
 
30 days of
 
the Facility Agent
 
giving notice
 
to
 
ABB of
 
such
 
representation or
statement being incorrect.
22.4
Cross default
 
(a)
 
Any Indebtedness of all or any of the Group Companies
 
is not paid when due
nor within any originally applicable grace period.
 
(b)
 
Any Indebtedness of all or any of
 
the Group Companies has
 
(i) become capable
of
 
being
 
declared
 
and
 
is
 
declared
 
to
 
be
 
or
 
(ii)
 
otherwise
 
becomes
 
due
 
and payable,
in any
 
case, prior to
 
its specified maturity as
 
a result of
 
a default or
 
an event
 
of default
(however described).
(c)
 
Any commitment for any
 
Indebtedness
 
of all or any of
 
the Group Companies
 
is cancelled
or suspended by a
 
creditor of all or
 
any of the Group
 
Companies
 
as a result
 
of a default
 
or
an event of default (however described).
(d)
 
Any
 
creditor
 
of
 
all
 
or
 
any
 
of
 
the
 
Group
 
Companies
 
becomes
 
entitled
 
to
 
declare
 
any
Indebtedness of all or any of the Group
 
Companies due and payable prior
 
to its specified
maturity as a result of a default
 
or an event of default (however described).
(e)
 
No
 
Event
 
of Default
 
will
 
occur under
 
this
 
Clause
 
22.
4
if
 
(1)
 
the Indebtedness
 
falling
within paragraphs
 
(a) to (d)
 
is Project Finance Indebtedness,
 
intra-Group Indebtedness
 
or
Indebtedness under a Finance Document or
 
(2)
 
the aggregate amount
 
of
 
Indebtedness
 
or
 
commitment
 
for
 
Indebtedness
 
falling
 
within paragraphs (a) to (d) (excluding any
described in (1) above) above
 
is less than $100,000,000.
22.5
Insolvency
 
(a)
 
Any
 
Obligor
 
or
 
any
 
Material
 
Subsidiary
 
is
 
unable
 
or
 
admits
 
in
 
writing
 
an
inability to pay
 
its debts
 
as they fall due,
 
suspends making payments on any of its debts
or, by reason of actual or anticipated financial difficulties, commences negotiations with
one or more of its creditors
 
with a view to rescheduling any of its indebtedness.
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(b)
 
A moratorium is declared
 
in respect of any
 
indebtedness of any
 
Obligor or any
Material Subsidiary.
 
22.6
Insolvency proceedings
Any corporate
 
action, legal proceedings or other
 
procedure or step
 
is taken in relation
 
to:
(a)
 
the
 
suspension
 
of
 
payments,
 
a
 
moratorium
 
of
 
any
 
indebtedness,
 
dissolution
 
or
reorganisation (by
 
way of voluntary
 
arrangement, scheme of
 
arrangement or
 
otherwise)
of
 
any
 
Obligor
 
or
 
any
 
Material
 
Subsidiary
 
other
 
than
 
a
 
solvent liquidation
 
or
reorganisation
 
of
 
any
 
Material
 
Subsidiary
 
(other
 
than
 
a
 
Borrower)
 
or
 
to
 
the
 
extent
permitted by Clause 21.5 (
Merger
);
(b)
 
a
 
composition,
 
assignment
 
or
 
arrangement
 
with
 
any
 
creditor
 
of
 
any
 
Obligor
 
or
 
any
Material Subsidiary (other than on a solvent basis
 
to the extent permitted by Clause 21.5
(
Merger
));
(c)
 
the appointment of
 
a liquidator (other
 
than in respect
 
of (i) a winding
 
up petition
 
which is
frivolous
 
or
 
vexatious
 
and
 
which
 
is,
 
in
 
any
 
event,
 
discharged
 
within
 
30
 
days
 
of
 
its
presentation
 
or
 
(ii)
 
a
 
solvent
 
liquidation
 
of
 
any
 
Material
 
Subsidiary
 
(other
 
than
 
a
Borrower)
 
or
 
(iii)
 
to
 
the
 
extent
 
permitted
 
by
 
Clause
 
21.5
 
(
Merger
)),
 
receiver,
 
administrator,
 
trustee
 
in
 
bankruptcy,
 
administrative
 
receiver,
 
compulsory
 
manager
 
or
other
 
similar officer
 
in
 
respect
 
of any
 
Obligor or any
 
Material Subsidiary or
 
any of
 
its
assets (having an aggregate value of at least
 
$100,000,000); or
(d)
 
enforcement
 
of
 
any
 
Security
 
over
 
any
 
assets (having
 
an
 
aggregate
 
value
 
of
 
at
 
least
$100,000,000) of any
 
Material Subsidiary or
 
Obligor by reason
 
of a default
 
or
 
event
 
of
 
default
 
(howsoever
 
described)
 
occurring
 
under
 
the
 
relevant agreement relating to
the Indebtedness
 
secured by such Security,
or any analogous procedure
 
or step is taken in any jurisdiction
.
22.7
Repudiation
An
 
Obligor
 
repudiates
 
a
 
Finance
 
Document
 
or
 
evidences
 
in
 
writing
 
an
 
intention
 
to repudiate
a Finance Document.
22.8
Unlawfulness
 
Subject to Clause 8.2
 
(
Borrower Illegality
), it is or becomes
 
unlawful for an Obligor
 
to
perform any of its material
 
obligations under the Finance Documents.
22.9
Cessation of business
The Group, taken as a whole, ceases
 
or threatens to cease
 
to do business.
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22.10
Acceleration
On and at any time after the occurrence of an
 
Event of Default
 
which is continuing
 
the
Facility
 
Agent
 
may,
 
and
 
shall
 
if
 
so
 
directed
 
by
 
th
e
Majority
 
Lenders,
 
by
 
notice
 
to
 
ABB: (a)
 
cancel
 
the
 
Total
 
Commitments
 
whereupon
 
they
 
shall
 
immediately
 
be
 
cancelled;
 
(b)
 
declare that all or part of the Advances, together with accrued
 
interest, and
 
all
other amounts
 
accrued under the Finance Documents
 
be immediately due
 
and payable,
whereupon they shall become immediately
 
due and payable; and/or
(c)
 
declare
 
that
 
all
 
or
 
part
 
of
 
the
 
Advances
 
be
 
payable on
 
demand, whereupon
 
they
 
shall
immediately
 
become
 
payable
 
on
 
demand
 
by
 
the
 
Facility
 
Agent
 
on
 
the instructions of
the Majority Lenders.
22.11
Clean-Up Period
Notwithstanding any other provision of any Finance Document,
 
if during a Clean-Up
Period
 
any
 
event
 
or
 
circumstance
 
exists
 
which
 
but
 
for
 
this
 
Clause
 
22.11
 
would
 
constitute
a Default,
 
such event or circumstance will not constitute
 
a Default (including
 
for the purposes of
Clause 4.2 (
Further conditions
 
precedent
)) during such Clean-Up
 
Period if:
(a)
 
it
 
relates
 
exclusively to,
 
or
 
arises
 
solely
 
as
 
a
 
result
 
of
 
matters
 
relating
 
to
 
the person(s)
acquired pursuant
 
to the
 
relevant Acquisition
 
(or to
 
any Subsidiary(ies)
of such person(s))
 
or to any obligations to
 
procure or ensure in
 
relation to such person(s)
(or in relation to any Subsidiary(ies) of such person(s));
(b)
 
it is capable of remedy and reasonable
 
steps are promptly taken to remedy it;
(c)
 
the
 
circumstances giving
 
rise to
 
it (other than
 
the Acquisition itself) have not
been procured by any Obligor; and
(d)
 
it is not reasonably likely to have a Material Adverse
 
Effect.
If
 
such
 
event
 
or
 
circumstance
 
is
 
continuing
 
on
 
or
 
after
 
the
 
expiry
 
of
 
such
 
Clean-Up Period
then,
 
with
 
effect from
 
such
 
date,
 
there shall
 
be
 
an Event
 
of
 
Default
 
or,
 
as the
 
case
 
may
 
be,
Default
 
notwithstanding
 
the
 
above (and
 
without
 
prejudice
 
to
 
the
 
rights and remedies
 
of
 
the
Finance Parties).
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SECTION 8
CHANGES TO PART
 
IES
23.
CHANGES TO THE LENDERS
23.1
Assignments and transfers by the Lenders
Subject to this Clause 23, a Lender (the "
Existing Lender
") may:
(a)
 
assign any of its rights; or
(b)
 
transfer by novation any of its rights
 
and obligations,
to another Qualifying Bank (the "
New Lender
").
23.2
Conditions of assignment or transfer
 
(a)
 
The
 
consent
 
of
 
ABB
 
is
 
required
 
for
 
an
 
assignment
 
or
 
transfer
 
by
 
a
 
Lender,
unless the assignment
 
or transfer is
 
to another Lender
 
or an Affiliate
 
of a Lender
 
that
 
is
a
Qualifying
 
Ban
k
or
 
unless
 
an
 
Event
 
of
 
Default
 
has
 
occurred
 
and
 
is continuing.
(b)
 
The
 
consent
 
of
 
ABB
 
to
 
an
 
assignment
 
or
 
transfer
 
must
 
not
 
be
 
unreasonably
 
withheld
or delayed.
 
AB
B
will be deemed
 
to have given
 
its consent 10
 
Business Days after
 
the
Lender
 
has requested it
 
unless consent is
 
expressly refused
 
by ABB
 
within that time.
(c)
 
An
 
assignment
 
or
 
transfer
 
shall
 
be
 
in
 
respect
 
of
 
a
 
Commitment
 
or
 
a
 
Swingline
Commitment
 
of
 
at
 
least
 
$10,000,000
 
or,
 
if
 
less,
 
the
 
whole
 
of
 
the
 
Commitment
 
or
Swingline Commitment of the
 
relevant assignor or
 
transferor (
provided that
 
any
 
such
 
assignment
 
or
 
transfer
 
shall
 
be
 
in
 
respect
 
of
 
a
 
Commitment
 
or Swingline
 
Commitment
 
at
 
least
 
equal
 
to
 
€50,000
 
(calculated
 
at
 
the
 
then
 
prevailing exchange
rate)).
(d)
 
An
 
assignment
 
or
 
transfer
 
by
 
a
 
Swingline
 
Lender
 
of
 
any
 
of
 
its
 
Swingline
Commitments
 
shall
 
only
 
be
 
made
 
if
 
there
 
is
 
a
 
simultaneous
 
assignment
 
or transfer
of
 
an
 
equal
 
amount
 
of
 
its
 
Commitment
 
(or
 
the
 
Commitment
 
of
 
its
 
Revolving Facility
Affiliate).
 
This paragraph
 
shall not
 
apply to a
 
transfer of
 
any
 
Swingline Commitment
 
to a
Lender or
 
an Affiliate
 
of a
 
Lender
provided that
 
no Swingline
 
Commitment of a
 
Lender
may
 
exceed
 
the
 
Commitment
 
of
 
that Lender
 
or its Revolving Facility Affiliate.
(e)
 
An
 
assignment
 
or
 
transfer
 
by
 
a Lender
 
which
 
is
 
a Swingline
 
Lender
 
or
 
the
 
Revolving
Facility Affiliate of a Swingline
 
Lender of any of its Commitment
 
shall only be effective
if after such assignment or transfer, the Commitment
 
of that
 
Lender
 
is
 
at
 
least
 
equal
 
to
each
 
of
 
the
 
Swingline
 
Commitments
 
of
 
that
 
Lender or its Swingline Affiliate.
(f)
 
An
 
assignment
 
will
 
only
 
be
 
effective
 
on:
 
(i)
 
receipt
 
by
 
the
 
Facility
 
Agent
 
of written
confirmation from
 
the
 
New Lender
 
(in
 
form and
 
substance satisfactory
 
to
 
the Facility
Agent) that the
 
New Lender
 
will assume
 
the same
 
obligations
 
to the other
 
Finance Parties
and the Obligors as it would
 
have been under
 
if it had
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been
 
a
n
Original
 
Lender;
 
and
 
(ii)
 
performance
 
by
 
the
 
Facility
 
Agent
 
of
 
all
 
necessary
"know your customer"
 
or other similar checks under
 
all applicable
 
laws
 
and
 
regulations
in
 
relation
 
to
 
such
 
assignment
 
to
 
a
 
New
 
Lender,
 
the
 
completion of
 
whic
h
the Facility
Agent
 
shall
 
promptly
 
notify to
 
the
 
Existing
 
Lender and the New Lender.
(g)
 
A
 
transfer
 
will
 
only
 
be
 
effective
 
if
 
the
 
procedure
 
set
 
out
 
in
 
Clause
 
23.5
(
Procedure for transfer
) is complied with.
(h)
 
If:
(i)
 
a Lender
 
assigns or transfers
 
any of its rights
 
o
r
obligations under
 
the
Finance Documents or changes
 
its Facility Office; and
(ii)
 
as a result of circumstances existing
 
at the date the
 
assignment,
 
transfer
or change
 
occurs, an
 
Obligor would
 
be obliged, or
 
at such
 
date it
 
is
 
reasonably
foreseeable
 
that
 
an
 
Obligor
 
would
 
be
 
obliged,
 
to
 
make
 
a
 
payment to
 
the New
Lender
 
or
 
Lender
 
acting
 
through
 
its
 
new
 
Facility
 
Office
 
under
 
Clause
 
9.7
(
Minimum Interest
), Clause
 
13
 
(
Tax
 
Gross
 
Up
and Indemnities
) or
 
Clause 14.1
(
Increased costs
),
then the New Lender or Lende
r
acting through its new Facility Office is only entitled
 
to
receive
 
payment
 
under
 
those
 
Clauses
 
to
 
the
 
same
 
extent
 
as
 
the Existing
 
Lender
 
or
Lender
 
acting
 
through
 
its
 
previous
 
Facility
 
Office
 
would have been if the assignment,
transfer or change had not occurred.
(i)
 
Each New Lender, by executing the relevant documentation pursuant to which
it becomes a Party as a Lender, confirms, for the avoidance
 
of doubt:
(i)
 
that
 
the
 
Facility
 
Agent
 
has
 
authority
 
to
 
execute
 
on
 
its
 
behalf
 
any
amendment
 
or
 
waiver
 
that
 
has
 
been
 
approved
 
by
 
or
 
on
 
behalf
 
of
 
the
 
requisite
Lender
 
or
 
Lenders
 
in
 
accordance
 
with
 
this
 
Agreement
 
on
 
or prior to the date
on which
 
the transfer
 
or assignment
 
becomes
 
effective in
 
accordance with
 
this
Agreement and
 
that
 
it
 
is
 
bound by
 
that decision
 
to
 
the
 
same
 
extent
 
as
 
the
Existing
 
Lender
 
would
 
have
 
been
 
had
 
it remained
 
a Lender; and
(ii)
 
that it agrees
 
to and is bound
 
by any extension
 
to the Termination
 
Date in respect
of the Commitments
 
being transferred
 
to which the
 
Existing Lender has
 
given its
consent in accordance with Clause 2.3 (
Extension
Option
).
23.3
Assignment or transfer fee
The New Lender shall, on the
 
date upon which an assignment or
 
transfer takes effect,
pay to the Facility Agent (for its own
 
account) a fee of $3,000.
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23.4
Limitation of responsibility of Existing
 
Lenders
 
(a)
 
Unless
 
expressly
 
agreed
 
to
 
the
 
contrary,
 
an
 
Existing
 
Lender
 
makes
 
no
representation
 
or
 
warranty
 
and
 
assumes
 
no
 
responsibility
 
to
 
a
 
New
 
Lender
 
for:
 
(i)
 
the
 
legality,
 
validity,
 
effectiveness,
 
adequacy
 
or
 
enforceability
 
of
 
the
Finance Documents
 
or any other documents;
 
(ii)
 
the financial condition of ABB or any Borrower;
 
(iii)
 
the
 
performance
 
and
 
observance
 
by
 
ABB
 
or
 
any
 
Borrower
 
of
 
its
obligations under the Finance
 
Documents or any
 
other documents; or
 
(iv)
 
the accuracy of any statements (whether written or oral) made
 
in or in
connection with any Finance Document or any other
 
document,
 
and any representations or warranties implied
 
by law are excluded.
 
(b)
 
Each New Lender
 
confirms to the
 
Existing Lender
 
and the other
 
Finance Parties
that it:
(i)
 
has made (and
 
shall continue
 
to make)
 
its own
 
independent investigation
and assessment of the financial
 
condition and affairs
 
of ABB and each Borrower
and its related
 
entities in connection
 
with its
 
participation in
 
this
 
Agreement
 
and
 
has
 
not
 
relied
 
exclusively
 
on
 
any
 
information
 
provided
 
to
 
it
 
by the
 
Existing
Lender
 
in
 
connection with
 
any Finance Document; and
(ii)
 
will continue to make
 
its own
 
independent appraisal
 
of the creditworthiness
 
of
ABB
 
and
 
each
 
Borrower
 
and
 
its
 
related
 
entities
 
whilst
 
any
 
amount
 
is
 
or
 
may
 
be
 
outstanding
 
under
 
the
 
Finance
 
Documents or any Commitment
 
is in
force.
(c)
 
Nothing in any Finance Document obliges an Existing
 
Lender to:
(i)
 
accept a re-transfer or re-assignment from a New
 
Lender of any of the
rights and obligations assigned or transferred under this Clause
 
23; or
 
(ii)
 
support any losses directly or indirectly
 
incurred by the
 
New Lender by
 
reason
 
of
 
the
 
non-performance
 
by
 
ABB
 
or
 
any
 
Borrower
 
of
 
its
obligations under the Finance
 
Documents or otherwise.
23.5
Procedure for transfer
(a)
 
Subject to the
 
conditions
 
set out
 
in
 
Claus
e
23.2
 
(
Conditions of assignment
 
or
transfer
) a transfer is effected
 
in accordance with paragraph (b) below when the Facility
 
Agent
 
executes
 
an
 
otherwise
 
duly
 
completed
 
Transfer
 
Certificate delivered to it by
the Existing Lender
 
and the New
 
Lender.
 
The
 
Facility Agent
 
shall, as soon as
 
reasonably
practicable after receipt by it of a duly completed Transfer
 
Certificate
 
appearing
 
on
 
its
face
 
to
 
comply
 
with
 
the
 
terms
 
of
 
this Agreement
 
and
 
delivered
 
in
 
accordance
 
with
the
 
terms
 
of
 
this
 
Agreement,
 
execute that Transfer
 
Certificate.
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(b)
 
The
 
Facility
 
Agent
 
shall
 
only
 
be
 
obliged
 
to
 
execute
 
a
 
Transfer
 
Certificate
 
delivered
to it by the Existing Lender and the New Lender upon its completion of
 
all
 
"know
 
your
customer"
 
or
 
other
 
checks
 
relating
 
to
 
any
 
person
 
that
 
it
 
is required
 
to carry
 
out
 
in
relation to the transfer to such
 
New Lender.
(c)
 
Subject to Clause 23.10 (
Pro rata interest settlement
), on the Transfer
 
Date:
(i)
 
to the extent that
 
in the Transfer Certificate
 
the Existing Lender
 
seeks to
transfer
 
by
 
novation
 
its
 
rights
 
and
 
obligations
 
under
 
the
 
Finance
 
Documents
each
 
of
 
ABB, the
 
Borrowers and
 
the Existing
 
Lender shall
 
be
 
released
 
from
further
 
obligations
 
towards
 
one
 
another
 
under
 
the Finance Documents
 
and
their
 
respective
 
rights
 
against
 
one
 
another
 
shall
 
be
 
cancelled
 
(being
 
the
"
Discharged Rights and Obligations
");
(ii)
 
each
 
of
 
ABB,
 
the
 
Borrowers
 
and
 
the
 
New
 
Lender
 
shall
 
assume
 
obligations
 
towards
 
one
 
another
 
and/or
 
acquire
 
rights
 
against
 
one another which
 
differ
from the Discharged Rights
 
and Obligations
 
only insofar as
 
ABB, that
 
Borrower
and the
 
New Lender
 
have assumed
 
and/or acquired
 
the
 
same
 
in
 
place
 
of
 
ABB,
that
 
Borrower
 
and
 
the
 
Existing
 
Lender;
(iii)
 
the
 
Agents,
 
the
 
Mandated
 
Lead Arrangers, the
 
New Lender
 
and
 
other Lenders
shall
 
acquire
 
the
 
same
 
rights
 
and
 
assume
 
the
 
same
 
obligations
 
between
themselves as they would have acquired and assumed had the New Lender been
an Original
 
Lender with
 
the rights
 
and/or obligations
 
acquired or
 
assumed by
 
it as
a
 
result
 
of
 
the
 
transfer
 
and
 
to
 
that
 
extent
 
the
 
Agents,
 
the
 
Mandated
 
Lea
d
Arrangers
 
and
 
the
 
Existing
 
Lender
 
shall each
 
be
 
released
 
from
 
further
 
obligations
 
to
 
each
 
other
 
under
 
this Agreement;
 
and
(iv)
 
the New Lender shall become a Party as a "
Lender
".
23.6
Disclosure of information
(a)
 
Any Finance Party may disclose to:
 
(i)
 
any of
 
its officers,
 
directors,
 
employees,
 
professional
 
advisers
 
(including
external legal counsel), auditors
 
and Affiliates (provided they
 
are made aware of
the
 
confidential
 
nature
 
of
 
the
 
relevant
 
information
 
and
 
that
 
it
 
may
 
be
 
price-
sensitive); and
(ii)
 
any other
 
person to
 
whom, and to
 
the extent
 
that, information is
 
required to
 
be
disclosed by any court or
 
tribunal of competent jurisdiction or
 
any governmental
or
 
regulatory
 
authority
 
or
 
similar
 
body,
 
or
 
pursuant
 
to
 
any applicable
 
law
 
or
regulation,
any
 
information
 
about
 
ABB,
 
any
 
Borrower,
 
the
 
Group
 
and
 
the
 
Finance
Documents as that Finance Party shall consider appropriate.
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(b)
 
Any Lender may disclose to any other person:
(i)
 
to
 
(or
 
through)
 
whom
 
that
 
Lender
 
assigns
 
or
 
transfers
 
(or
 
may
potentially
 
assign
 
or
 
transfer)
 
all
 
o
r
any
 
of
 
its
 
rights
 
and
 
obligations
 
under
this Agreement;
 
or
(ii)
 
with (or
 
through) whom
 
that Lender
 
enters into
 
(or may
 
potentially enter
 
into) any
sub-participation in
 
relation to,
 
or any
 
other transaction
 
under which payments
are to be made by reference to, this Agreement or any Obligor,
any
 
information
 
about
 
ABB,
 
any
 
Borrower,
 
the
 
Group
 
and
 
the
 
Finance
 
Documents
as that
 
Lender
 
shall consider appropriate,
provided that
in relation to paragraphs (b)(i)
and (b)(ii) above only, the
 
person to whom
 
the information
 
is to be given has
 
entered into
a confidentiality undertaking unless such person is
 
any
 
central
 
bank
 
or
 
supranational
bank
 
in
 
which
 
case
 
no
 
confidentiality
 
undertaking will be required.
Notwithstanding any of the
 
provisions of the
 
Finance
 
Documents, the Obligors and the Finance
Parties hereby
 
agree that
 
each Party
 
and each
 
employee,
 
representative or
 
other
 
agent of each
 
Party
may disclose to any and all persons,
 
without limitation of any kind,
 
the "
tax structure
" and "
tax
treatment
" (in each case within the meaning of the U.S. Treasury Regulation
 
Section 1.6011-4)
of the
 
Facility
 
and
 
any
 
materials
 
of
 
any
 
kind (including
 
opinions
 
or
 
other
 
tax
 
analyses)
 
that
are
 
provided
 
to
 
any
 
of
 
the
 
foregoing
 
relating to such tax structure and
 
tax treatment.
23.7
Copy of Transfer Certificate and Increase Confirmation to ABB
 
The
 
Facility
 
Agent
 
shall,
 
as
 
soon
 
as
 
reasonably
 
practicable
 
after
 
it
 
has
 
executed
 
a
Transfer Certificate or an Increase Confirmation, send to ABB a copy
 
of that Transfer
Certificate or Increase Confirmation.
23.8
Security over Lenders' rights
 
In addition to the
 
other rights provided
 
to Lenders under
 
this Clause 23,
 
each Lender
may without
 
consulting with
 
or obtaining
 
consent from
 
any Obligor, at
 
any time
 
charge, assign
 
or
 
otherwise
 
create
 
Security
 
in
 
or
 
over
 
(whether
 
by
 
way
 
of
 
collateral
 
or
 
otherwise) all or any
of its rights under
 
any Finance
 
Document to secure
 
obligations of
 
that Lender to a federal reserve
or central
 
bank except that
 
no such charge, assignment
 
or Security
 
shall:
(a)
 
release a
 
Lender from
 
any of its obligations
 
under the
 
Finance Documents
 
or
 
substitute
the beneficiary
 
of the
 
relevant charge, assignment or
 
other Security
 
for the Lender
 
as a
party to any of the Finance Documents;
(b)
 
require any payments to be
 
made by an Obligor other
 
than or in excess
 
of, or
 
grant to any
person any
 
more extensive
 
rights than,
 
those required
 
to be
 
made or
 
granted to
 
the relevant
Lender under the Finance Documents; or
(c)
 
upon any
 
enforcement of such
 
charge,
 
assignment or Security,
 
result in
 
any
 
assignment
or
 
transfer
 
of
 
any such
 
rights
 
under
 
the
 
Finance
 
Documents which
 
is in
 
breach of
 
the
transfer and assignment
 
limitations set out
 
in this Agreement.
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23.9
Exposure Transfers
 
Other than an assignment or transfer permitted pursuant
 
to Clause 23.2 (
Conditions
 
of
assignment or
 
transfer
), no
 
Lender shall
 
enter into
 
any arrangement
 
with another
 
person under
which such
 
Lender
 
substantially
 
transfers its
 
exposure under
 
this Agreement
 
to that
 
other
 
person,
 
unless
 
under
 
such
 
arrangement
 
and
 
at
 
all
 
times
 
while
 
such arrangement
 
is in effect:
(a)
 
the
 
relationship
 
between
 
that
 
Lender
 
and
 
that
 
other
 
person
 
is
 
that
 
of
 
a
 
debtor and
creditor (including in the bankruptcy
 
or similar event of that Lender
 
or any Borrower);
(b)
 
the
 
other
 
person
 
will
 
have
 
no
 
proprietary
 
interest
 
in
 
the
 
benefit
 
of
 
this
 
Agreement
or in any
 
monies received by that Lender under or in relation
 
to this
 
Agreement, and
(c)
 
the other
 
person
 
will
 
under no
 
circumstances:
 
(i) be
 
subrogated to,
 
or substituted
 
in respect
of, that
 
Lender's claims under
 
this Agreement; and
 
(ii) have
 
otherwise any
 
contractua
l
relationship with,
 
or rights
 
against, any
 
Obligor under,
 
or in relation
 
to, this
 
Agreement.
23.10
Pro rata interest settlement
 
(a)
 
In
 
respect
 
of
 
any
 
transfer
 
pursuant
 
to
 
Claus
e
23.
5
(
Procedure
 
for
 
transfer
),
provided that
the Transfer
 
Date is not on the last day of an Interest Period:
(i)
 
any
 
interest
 
or
 
fees
 
in
 
respect
 
of
 
the
 
relevant
 
participation
 
which
 
are
expressed to accrue by reference to
 
the lapse of time shall continue
 
to accrue in
favour of the Existing
 
Lender up to but excluding the
 
Transfer Date
 
("
Accrued
Amounts
")
 
and shall
 
become due
 
and payable
 
to
 
the
 
Existing Lender (without
further interest
 
accruing on
 
them) on
 
the last
 
day of
 
the current
 
Interest
 
Period
 
(or,
if
 
the Interest
 
Period is
 
longer than
 
six Months,
 
on the
 
next of
 
the dates
 
which falls
at six Monthly
 
intervals after the first day
 
of that Interest Period); and
(ii)
 
the rights assigned
 
or transferred by
 
the Existing
 
Lender will
 
not include
the right to the Accrued Amounts, so that,
 
for the avoidance of doubt:
 
(A)
 
when
 
the
 
Accrued
 
Amounts
 
become
 
payable,
 
those
 
Accrued
Amounts will be payable to the Existing Lender; and
 
(B)
 
the amount payable
 
to the New Lender on that
 
date will be the
amount which would,
 
but for
 
the application
 
of this
 
Clause 23.10,
 
have
been
 
payable to it on that date, but after
 
deduction of the Accrued
Amounts.
 
(b)
 
In this Clause
 
23.10 references
 
to "Interest Period"
 
shall be
 
construed to
 
include
a reference to any other period for accrual of fees.
 
(c)
 
An Existing Lender which
 
retains the right
 
to the Accrued
 
Amounts
 
pursuant to
this Clause
 
23.10 but
 
which does
 
not have
 
a Commitment shall
 
be deemed
 
not to
 
be a
Lender for the purposes of ascertaining whether the agreement of
 
any
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specified
 
group
 
of
 
Lenders
 
has
 
been
 
obtained
 
to
 
approve
 
any
 
request
 
for
 
a consent,
 
waiver,
 
amendment
 
or
 
other
 
vote
 
of
 
Lenders
 
under
 
the
 
Finance
 
Documents.
24.
CONFIDENTIALITY OF FUNDING RATES
24.1
Confidentiality and disclosure
(a)
 
The
 
Facility
 
Agent
 
and
 
each
 
Obligor
 
agree
 
to
 
keep
 
each
 
Funding
 
Rate
 
confidential
and not
 
to disclose
 
it
 
to
 
anyone,
 
save to
 
the extent
 
permitted by paragraphs (b) and
 
(c)
below.
(b)
 
The Facility Agent may disclose:
 
(i)
 
any Funding Rate to ABB
 
and the relevant Borrower
 
pursuant to Clause
9.6 (
Notification of rates of
 
interest
); and
 
(ii)
 
any
 
Funding
 
Rate
 
to
 
any
 
person
 
appointed
 
by
 
it
 
to
 
provide
administration
 
services
 
in
 
respect
 
of
 
one
 
or
 
more
 
of
 
the
 
Finance
Documents
 
to
 
the
 
extent
 
necessary
 
to
 
enable
 
such
 
service
 
provider to provide
those services
 
if the service provider to whom
 
that information
 
is to be given has
entered into a confidentiality agreement substantially in
 
the
 
form
 
of
 
the
 
LMA
Master
 
Confidentiality
 
Undertaking
 
for
 
Use With
 
Administration/Settlement
Service
 
Providers
 
or
 
such
 
other
 
form
 
of
 
confidentiality
 
undertaking
 
agreed
between the Facility
 
Agent and
 
the
 
relevant Lender.
(c)
 
The
 
Facility
 
Agent
 
ma
y
disclose
 
any
 
Funding
 
Rate,
 
and
 
each
 
Obligor
 
may
 
disclose any Funding Rate, to:
(i)
 
any of its Affiliates and
 
any of
 
its or their officers,
 
directors, employees,
professional
 
advisers,
 
auditors,
 
partners
 
and
 
Representatives
 
if
 
any person
to
 
whom
 
that
 
Funding
 
Rate
 
is
 
to
 
be
 
given
 
pursuant
 
to
 
this paragraph (i) is
informed in writing of
 
its confidential nature and
 
that it may
 
be
 
price-sensitive
information
 
except
 
that
 
there
 
shall
 
be
 
no
 
such requirement
 
to
 
so
 
inform
 
if
 
the
 
recipient
 
is
 
subject
 
to
 
professional
 
obligations
 
to
 
maintain
 
the
confidentiality
 
of
 
that
 
Funding
 
Rate
 
or
 
is otherwise bound by requirements of
confidentiality in relation to it;
(ii)
 
any person to whom information is required or requested
 
to be disclosed by
 
any
court of
 
competent jurisdiction or
 
any governmental,
 
banking,
 
taxation or other
regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation if the person to whom that Funding
Rate is to be given
 
is informed in writing
 
of
 
its
 
confidential
 
nature
 
and
 
that
 
it
may
 
be
 
price-sensitive
 
information except that there shall be no requirement to
so inform
 
if, in
 
the opinion of the Facility
 
Agent or the relevant Obligor,
 
as the
case may
 
be, it is not practicable to do
 
so in the circumstances;
 
(iii)
 
any
 
person
 
to
 
whom
 
information
 
is
 
required
 
to
 
be
 
disclosed
 
in
connection
 
with,
 
and
 
for
 
the
 
purposes
 
of,
 
any
 
litigation,
 
arbitration,
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administrative
 
or
 
other
 
investigations,
 
proceedings
 
or
 
disputes
 
if
 
the person
to whom
 
that Funding
 
Rate is to
 
be given
 
is informed
 
in writing
 
of its
 
confidential
nature and that
 
it may be
 
price-sensitive
 
information except that there shall
 
be no
requirement to
 
so inform
 
if, in
 
the opinion of
 
the Facility Agent or the relevant
Obligor, as
 
the case
 
may be,
 
it is
 
not
 
practicable to do
 
so in the
 
circumstances; and
(iv)
 
any person with the consent of the relevant
 
Lender.
24.2
Other obligations
(a)
 
The Facility Agent and each Obligor acknowledge that each Funding Rate is or may
 
be
 
price-sensitive
 
information
 
and
 
that
 
its
 
use
 
may
 
be
 
regulated
 
or prohibited by
applicable
 
legislation
 
including
 
securities
 
law
 
relating
 
to
 
insider
 
dealing
 
and
 
market
abuse
 
and
 
the
 
Facility
 
Agent and
 
each Obligor
 
undertake
 
not to use
 
any Funding Rate
for any unlawful purpose.
 
(b)
 
The Facility Agent and each Obligor agree (to
 
the extent permitted by law and
regulation) to inform the relevant
 
Lender:
 
(i)
 
of the circumstances
 
of any disclosure
 
made pursuant to
 
paragraph (c)(ii)
of
 
Clause
 
24.1
 
(
Confidentiality
 
and
 
disclosure
)
 
above
 
except
 
where
 
such
disclosure
 
is
 
made
 
to
 
any
 
of
 
the
 
persons
 
referred
 
to
 
in
 
that
 
paragraph during
the ordinary course
 
of its supervisory
 
or regulatory function; and
 
(ii)
 
upon becoming aware that any
 
information has been disclosed
 
in breach
of this Clause
 
24.
25.
CHANGES TO THE OBLIGORS
25.1
Assignments and transfer by Obligors
Neither ABB nor any Borrower
 
may assign any
 
of its rights or transfer any of its
 
rights
or obligations under the Finance Documents.
25.2
Additional Borrowers
(a)
 
Subject to compliance
 
with paragraphs (c)
 
and
 
(d) of Clause
 
20.7 (
"Know
 
your
customer"
checks
), ABB may
 
request by written
 
notice that any
 
of its
 
wholly owned
 
Subsidiaries
becomes
 
an
 
Additional
 
Borrower.
 
That
 
Subsidiary
 
shall
 
become
 
an
 
Additional
Borrower if:
 
(i)
 
that
 
Subsidiary
 
is
 
incorporated
 
in
 
an
 
Agreed
 
Jurisdiction
 
or
 
all
 
the
Lenders approve the addition of that Subsidiary;
 
(ii)
 
ABB
 
delivers
 
to
 
the
 
Facility
 
Agent
 
a
 
duly
 
completed
 
and
 
executed
Borrower Accession Letter;
 
(iii)
 
ABB confirms that no Default
 
is continuing or would occur
 
as a result
of that Subsidiary becoming an Additional Borrower;
 
and
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(iv)
 
the Facility Agent has received all
 
of the documents and other evidence
 
listed in
Part
 
II
 
of
 
Schedule
 
2
 
(
Conditions
 
Precedent
)
 
in
 
relation
 
to
 
that
 
Additional
Borrower, each in form and substance
 
reasonably
 
satisfactory
 
to
 
the
 
Facility
Agent.
(b)
 
The Facility Agent shall
 
notify ABB and the Lenders promptly upon
 
receiving (in form
and substance reasonably
 
satisfactory to it)
 
all the documents
 
and other
 
evidence listed in
Part II of Schedule 2 (
Conditions Precedent
).
(c)
 
Other than to the extent that the Majority Lenders notify the Facility
 
Agent in writing to
the contrary
 
before the
 
Facility
 
Agent gives the
 
notification described in
 
paragraph
 
(b)
above,
 
the
 
Lenders
 
authorise
 
(but
 
do
 
not
 
require)
 
the
 
Facility
 
Agent
 
to
 
give
 
that
notification.
 
The
 
Facility
 
Agent
 
shall
 
not
 
be
 
liable
 
for
 
any
 
damages,
 
costs
 
or
 
losses
whatsoever as a result of giving any such notification.
(d)
 
Delivery
 
of
 
a
 
Borrower
 
Accession
 
Letter
 
constitutes
 
confirmation
 
by
 
the relevant
Subsidiary
 
that
 
the
 
representations
 
and
 
warranties
 
in
 
Clause
 
19.5 (
Validity
 
and
admissibility in evidence
) and
 
the representations and
 
warranties deemed to be repeated
pursuant to Clause 19.16
 
(
Repetition
) are true
 
and correct
 
in relation to it as at the date of
delivery as if made
 
by reference to the facts
 
and
 
circumstances then existing.
25.3
Resignation of a Borrower
 
(a)
 
ABB may request that a Borrower ceases
 
to be a Borrower
 
by delivering to
 
the
Facility Agent a Resignation Letter.
 
(b)
 
The
 
Facility Agent
 
shall accept
 
a
 
Resignation Letter
 
and
 
notify ABB and the
Lenders of its acceptance if:
 
(i)
 
no Default would result from the acceptance
 
of the Resignation Letter
(and ABB has confirmed this to be
 
the case); and
 
(ii)
 
the relevant Borrower
 
is under
 
no actual or contingent
 
obligations under
any Finance Documents,
 
whereupon that company shall cease
 
to be a Borrower and
 
shall have no
 
further
rights or obligations under the Finance Documents.
25.4
Repetition of Representation
Delivery
 
of
 
a
 
Borrower
 
Accession
 
Letter
 
constitutes
 
confirmation
 
by
 
the
 
relevant
 
Subsidiary
 
that
 
the
 
representations
 
and
 
warranties
 
in
 
Clause 19.5
 
(
Validit
 
y
 
and
admissibility
 
in evidence
)
and
 
the
 
representations
 
and
 
warranties
 
deemed
 
to be
 
repeated
 
pursuant to
 
Clause 19.16
 
(
Repetition
)
are true and correct in
 
relation
 
to it as at the date of
 
delivery
 
as if made by reference to
 
the facts
and circumstances then existing.
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SECTION 9
THE FINANCE PARTIES
26.
ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS
26.1
Appointment of the Agents
 
(a)
 
Each of the Mandated Lead Arrangers and the Lenders
 
appoints each Agent to
act as its agent under and in connection with
 
the Finance Documents.
(b)
 
Each of the Mandated Lead Arrangers and
 
the Lenders authorises each Agent
to exercise
 
the rights, powers,
 
authorities and
 
discretions specifically
 
given to
 
such Agent
under or
 
in connection
 
with the
 
Finance Documents
 
together with
 
any other
 
incidental
rights, powers, authorities and
 
discretions.
 
(c)
 
The
 
Facility
 
Agent
 
and
 
the
 
Euro
 
Swingline
 
Agent
 
shall,
 
unless
 
ABB
 
agrees
otherwise, act out of an office in London.
 
(d)
 
The Dollar Swingline Agent shall, unless ABB agrees
 
otherwise, act out of an
office in New York.
 
26.2
Instructions
(a)
 
An Agent shall:
 
(i)
 
unless a contrary indication appears in a Finance
 
Document, exercise or
refrain from exercising any right, power, authority or discretion vested
 
in it as
Agent in accordance
 
with any
 
instructions given to it by:
 
(A)
 
all
 
Lenders
 
if
 
the
 
relevant
 
Finance
 
Document
 
stipulates
 
the
matter is an all Lender
 
decision;
 
and
 
(B)
 
in all other cases, the Majority Lenders;
 
and
(ii)
 
not be liable for any act (or omission) if it
 
acts (or refrains from acting)
in accordance with paragraph
 
(i) above.
(b)
 
An
 
Agent
 
shall
 
be
 
entitled
 
to
 
request
 
instructions,
 
or
 
clarification
 
of
 
any
instruction, from
 
the Majority
 
Lenders (or,
 
if the relevant
 
Finance Document stipulates
the
 
matter
 
is
 
a
 
decision
 
for
 
any
 
other
 
Lender
 
or
 
group
 
of
 
Lenders,
 
from
 
that
 
Lender
or
 
group of Lenders)
 
as to whether,
 
and in
 
what manner,
 
it should
 
exercise
 
or
 
refrain
 
from
 
exercising
 
any
 
right,
 
power,
 
authority
 
or
 
discretion.
 
An
 
Agent
 
may
 
refrain
from acting
 
unless and until
 
it receives
 
any such
 
instructions or
 
clarification that it
 
has
requested.
(c)
 
Save in
 
the case of
 
decisions stipulated to
 
be a matter
 
for any
 
other Lender or group
 
of
Lenders under the
 
relevant Finance Document
 
and unless a
 
contrary indication appears
in a Finance Document, any
 
instructions given to an Agent by
 
the Majority
 
Lenders shall
override any conflicting
 
instructions given
 
by any
 
other Parties and will be binding
 
on all
Finance Parties.
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(d)
 
An Agent may refrain from acting in accordance with any instructions of any Lender
 
or
group
 
of
 
Lenders
 
until
 
it
 
has
 
received
 
an
y
indemnification
 
and/or
 
security that it
 
may
in its
 
discretion
 
require
 
(which may
 
be greater
 
in extent
 
than
 
that contained
 
in the
 
Finance
Documents
 
and which
 
may include
 
payment in advance)
 
for
 
any cost,
 
loss
 
or liability
which
 
it
 
may incur
 
in
 
complying
 
with
 
those instructions.
 
(e)
 
In the absence of instructions
,
an Agent may act (or refrain from acting) as it
considers to be in the best interest of
 
the Lenders.
 
(f)
 
An Agent is not authorised to act on behalf of a Lender
 
(without first obtaining
that
 
Lender's
 
consent)
 
in
 
any
 
legal
 
or
 
arbitration
 
proceedings
 
relating
 
to
 
any Finance
Document.
26.3
Duties of the Agents
(a)
 
Subject to paragraph (b) below, each Agent shall promptly forward to a Party
the original or a copy
 
of any document which
 
is delivered to that Agent
 
for that
 
Party by
any other Party.
(b)
 
Without
 
prejudice
 
to
 
Claus
e
23.
7
(
Copy
 
of
 
Transfer
 
Certificate
 
and
 
Increase
Confirmation
 
to
 
ABB
),
 
paragrap
h
(a
)
above shall
 
not
 
apply
 
to
 
any
 
Transfer
 
Certificate
or Increase Confirmation.
(c)
 
Except
 
where
 
a
 
Finance
 
Document
 
specifically
 
provides
 
otherwise,
 
an
 
Agent
 
is
 
not
obliged to review
 
or check the
 
adequacy,
 
accuracy or completeness
 
of any
 
document it
forwards to another Party.
(d)
 
If the Facility Agent receives notice from a Party referring
 
to this Agreement,
 
describing
a Default and stating
 
that the circumstance
 
described is a
 
Default, it
 
shall promptly notify
the Lenders.
(e)
 
If an
 
Agent is
 
aware of
 
the non-payment
 
of
 
any principal, interest,
 
commitment fee
 
or
other fee payable to a Finance Party (other than an Agent or a Mandated Lead
 
Arranger)
under this Agreement
 
it shall promptly
 
notify the other Finance
 
Parties.
(f)
 
The Facility Agent shall promptly notify:
(i)
 
the
 
Lenders
 
of
 
any
 
Default arising
 
under
 
Claus
e
22.
1
(
Non-payment
);
and
(ii)
 
each Swingline Agent of:
(A)
 
any assignments or transfers by a Lender pursuant
 
to Clause 23
(
Changes to the Lenders
); and
(B)
 
any changes to the Obligors pursuant
 
to Clause 25 (
Changes
 
to
the Obligors
).
 
(g)
 
The Facility Agent
 
shall provide to ABB
 
within 5 Business
 
Days
 
of a request
by ABB (made no more
 
frequently than once per
 
calendar month), a list
 
(which
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may be in electronic
 
form)
 
setting out the names of the
 
Lenders as at the date
 
such
 
list
 
is
 
provided
 
and
 
their
 
respective
 
Commitments
 
and
 
Swingline
 
Commitments, and
the name
 
of the
 
credit contact
 
at each
 
Lender
 
with access
 
to the
 
Debtdomain site
 
in respect
of the Facility.
(h)
 
Each
 
Agent's duties
 
under
 
the
 
Finance
 
Documents are solely
 
mechanical and
administrative in nature.
(i)
 
Each
 
Agent
 
shall
 
have
 
only
 
those
 
duties,
 
obligations
 
and
 
responsibilities
expressly specified in the Finance
 
Documents
 
to which it is expressed
 
to be a party (and
no others shall be implied).
26.4
Role of the Mandated Lead Arrangers
Except
 
as
 
specifically
 
provided
 
in
 
the
 
Finance
 
Documents,
 
the
 
Mandated
 
Lead
Arrangers have no
 
obligations of
 
any kind
 
to any
 
other Party under
 
or in connection with any
Finance Document.
26.5
No fiduciary duties
 
(a)
 
Nothing
 
i
n
any Finance
 
Documen
t
constitutes
 
an Agent
 
or
 
a
 
Mandated
 
Lead
Arranger as a trustee or fiduciary of
 
any other person.
(b)
 
No Agent nor any Mandated Lead Arranger shall be bound
 
to account to any
Lender for any sum or the
 
profit
 
element of any sum received
 
by it for its own account.
26.6
Business with the Group
Each Agent and each Mandated Lead Arranger may accept
 
deposits from,
 
lend money
to and generally
 
engage in any
 
kind of banking
 
or other business
 
with any of the
 
Group
Companies.
26.7
Rights and discretions of the Agents
(a)
 
Each Agent may
(i)
 
rely on
 
any representation,
 
communication, notice
 
or document
 
believed
by it to be genuine, correct
 
and appropriately
 
authorised;
(ii)
 
rely
 
on
 
any
 
statement
 
made
 
by
 
a
 
director,
 
authorised
 
signatory
 
or
employee of any
 
person regarding
 
any matters
 
which may
 
reasonably be
assumed to be within
 
his knowledge or within his power to verify;
(iii)
 
assume that:
 
(A)
 
any
 
instructions received
 
by it from
 
the
 
Majority Lenders, any
Lenders or
 
any group
 
of Lenders are
 
duly given in accordance with
the terms of the Finance Documents; and
 
(B)
 
unless it has
 
received notice
 
of revocation,
 
that those
 
instructions
have not been revoked; and
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(iv)
 
rely on a certificate from any person:
(A)
 
as to any matter of fact or circumstance
 
which might reasonably
be expected to be within the knowledge of that person;
 
or
 
(B)
 
to the effect that such person
 
approves of any particular
 
dealing,
transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph
(A) above,
 
may assume the truth and accuracy of that
 
certificate.
(b)
 
Eac
h
Agent
 
may
 
assume
 
(unless
 
it
 
has
 
received
 
notice
 
to
 
the
 
contrary
 
in
 
its
capacity as agent for the Lenders)
 
that:
 
(i)
 
no
 
Default
 
has
 
occurred
 
(unless
 
it
 
has
 
actual
 
knowledge
 
of
 
a
 
Default
arising under Clause 22.1 (
Non-payment
));
 
(ii)
 
any right,
 
power, authority
 
or discretion
 
vested in
 
any Party
 
or any
 
group
of Lenders has not been exercised; and
 
(iii)
 
any notice or request made by ABB
 
(other than a Utilisation
 
Request) is
made
 
on
 
behalf
 
of
 
and
 
with
 
the
 
consent
 
and
 
knowledge
 
of
 
all
 
the
Obligors.
(c)
 
Eac
h
Agent
 
may
 
engage
 
and
 
pay
 
for
 
the
 
advice
 
or
 
services
 
of
 
any
 
lawyers,
accountants, tax advisers, surveyors or other professional
 
advisers
 
or experts.
 
(d)
 
Without
 
prejudice
 
to
 
the
 
generality
 
of
 
paragrap
h
(c
)
above
 
or
 
paragrap
h
(e)
below
,
eac
h
Agent
 
may
 
at
 
any
 
time
 
engage
 
and
 
pay
 
for
 
the
 
services
 
of
 
any
 
lawyers
to act as independent
 
counsel to the Agent (and so separate from any lawyers instructed
by the Lenders) if the Agent
 
in its reasonable opinion
 
deems this to be necessary.
(e)
 
Each Agent may rely on the advice or services
 
of any lawyers, accountants,
 
tax advisers,
surveyors or other
 
professional advisers
 
or experts (whether
 
obtained by the Agent
 
or by
any
 
other
 
Party)
 
and
 
shall
 
not be
 
liable
 
for
 
any
 
damages, costs
 
or losses
 
to any person,
any diminution
 
in value
 
or any
 
liability whatsoever
 
arising as a result of its so relying.
(f)
 
The Facility Agent may disclose the identity of a Defaulting Lender to
 
the other Finance
Parties
 
and
 
ABB
 
and
 
shall
 
disclose
 
the
 
same
 
upon
 
the written
 
request of
 
ABB or
 
the
Majority Lenders.
(g)
 
Each Agent may act in
 
relation to the Finance
 
Documents
 
through its officers,
employees and agents.
(h)
 
Unless
 
a
 
Finance
 
Document
 
expressly
 
provides
 
otherwis
e
eac
h
Agent
 
may
disclose to
 
any other
 
Party any
 
information it
 
reasonably believes
 
it has
 
received as agent
under this Agreement.
 
(i)
 
Notwithstanding any other provision of any
 
Finance Document
 
to the contrary,
 
no
Agent or Mandated Lead Arranger is
 
obliged to do or omit to do anything
 
if
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it
 
would
 
or
 
might
 
in
 
its
 
reasonable
 
opinion
 
constitute
 
a
 
breach
 
of
 
law
 
or
regulation or a breach of a fiduciary duty or
 
duty
 
of confidentiality.
(j)
 
Notwithstanding
 
any
 
provision
 
of
 
any Finance
 
Document to
 
the
 
contrary
,
no
 
Agent is
obliged to
 
expend or risk
 
its own funds or otherwise
 
incur an
y
financial liability
 
in
 
the
performance of its
 
duties,
 
obligations or
 
responsibilities
 
or
 
the exercise
 
of
 
any
 
right,
power,
 
authority
 
or
 
discretion
 
if
 
it
 
has
 
grounds
 
for
 
believing
 
the
 
repayment
 
of
 
such
 
funds
 
or
 
adequate
 
indemnity
 
against,
 
or
 
security for,
 
such
 
risk
 
or
 
liability
 
is
 
not
reasonably assured to it.
26.8
Responsibility for documentation
No Agent nor any Mandated Lead Arranger
 
is responsible or liable for:
(a)
 
the
 
adequacy,
 
accuracy
 
or
 
completeness
 
of
 
any
 
information
 
(whether
 
oral
 
or written)
supplied
 
by an
 
Agent, a
 
Mandated Lead
 
Arranger,
 
ABB,
 
any
 
Borrower or
 
any
 
other
person
 
in
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
or
 
the
 
Information
 
Package
or
 
the
 
transactions
 
contemplated
 
in
 
the
 
Finance Documents
 
or
 
any
 
other
agreement,
 
arrangement
 
or
 
document
 
entered
 
into,
 
made or executed
 
in anticipation of,
under or in connection with any Finance
 
Document;
(b)
 
the legality, validity, effectiveness, adequacy or enforceability of any
 
Finance Document
or any
 
other agreement,
 
arrangement or document
 
entered into,
 
made or
 
executed
 
in
 
anticipation
 
of,
 
under or
 
in
 
connection
 
with
 
any
 
Finance
 
Document; or
(c)
 
any
 
determination
 
as
 
to
 
whether
 
any
 
information
 
provided
 
or
 
to
 
be
 
provided
 
to
 
any
Finance Party is non-public
 
information the use of
 
which may be regulated
 
or
 
prohibited
by
 
applicable
 
law
 
or
 
regulation
 
relating
 
to
 
insider
 
dealing
 
or
 
otherwise.
26.9
No duty to monitor
An Agent shall not be bound to enquire:
(a)
 
whether or not any Default has occurred;
 
(b)
 
as to
 
the performance,
 
default or
 
any breach
 
by any
 
Party of
 
its obligations
 
under
any Finance Document; or
 
(c)
 
whether any other
 
event specified in
 
any Finance Document
 
has occurred.
26.10
Exclusion of liability
(a)
 
Without
 
limiting
 
paragrap
h
(b
)
below
 
(and
 
without
 
prejudice
 
to
 
any
 
other
provision
 
of
 
any
 
Finance
 
Document
 
excluding
 
or
 
limiting
 
the
 
liability
 
o
f
an
 
Agent),
no Agent will be liable for:
 
(i)
 
any damages, costs or losses
 
to any person, any diminution in
 
value,
 
or any
liability whatsoever arising
 
as a result of
 
taking or not
 
taking any
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action
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document,
 
unless directly
caused by its negligence, wilful default
 
or wilful misconduct;
(ii)
 
exercising,
 
or
 
not exercising,
 
any right,
 
power,
 
authority or
 
discretion
 
given to
it
 
by,
 
or
 
in
 
connection
 
with,
 
any
 
Finance
 
Document
 
or
 
any
 
other
 
agreement,
arrangement
 
or
 
document
 
entered
 
into,
 
made
 
or
 
executed
 
in
 
anticipation
 
of,
under
 
or
 
in
 
connection
 
with,
 
any
 
Finance
 
Document,
 
other
 
than
 
by
 
reason
 
of
 
its
 
negligence,
 
wilful
 
default
 
or
 
wilful
 
misconduct; or
(iii)
 
without prejudice to
 
the generality
 
of paragraphs (i) and
 
(ii) above, any
 
damages,
costs or losses
 
to any person, any
 
diminution in value
 
or any liability whatsoever
(but not
 
including any
 
claim based
 
on the fraud
 
of the
 
Agent)
 
arising
 
as
 
a
 
result
of
 
any
 
act,
 
event
 
or
 
circumstance
 
not
 
reasonably
 
within
 
its
 
control,
 
including
 
(in
 
each
 
case
 
and
 
without limitation) such damages, costs, losses, diminution
in value or liability arising
 
as
 
a
 
result
 
of:
 
nationalisation,
 
expropriation
 
or
 
other
 
governmental actions; any regulation, currency restriction,
 
devaluation
or
 
fluctuation;
 
market
 
conditions
 
affecting
 
the
 
execution
 
or
 
settlement
 
of
transactions
 
or the value of assets (including any Disruption
 
Event); breakdown,
 
failure
 
or
 
malfunction
 
of
 
any
 
third
 
party
 
transport,
 
telecommunications,
computer services or systems; natural disasters or acts
 
of
 
God;
 
war,
 
terrorism,
insurrection
 
or
 
revolution;
 
or
 
strikes
 
or
 
industrial action.
(b)
 
No Party may take
 
any proceedings against
 
any officer, employee or
 
agent of
 
an Agent in
respect of any claim
 
it might have
 
against such Agent
 
or in respect
 
of any act
 
or omission
of any kind by that officer, employee or agent in relation
 
to
 
any
 
Finance
 
Document
 
and
any
 
officer,
 
employee
 
or
 
agent
 
of
 
such
 
Agent
 
may rely on this Clause.
(c)
 
No Agent will
 
(absent negligence,
 
wilful default
 
or wilful misconduct
 
directly giving
 
rise
to such
 
liability) be
 
liable for
 
any delay
 
(or
 
any related
 
consequences) in
 
crediting
 
an
account with an amount
 
required under the
 
Finance Documents to be
 
paid by such Agent
if that
 
Agent has
 
taken all
 
necessary steps as
 
soon as
 
reasonably practicable to
 
comply
with the
 
regulations or operating
 
procedures of
 
any
 
recognised
 
clearing
 
or
 
settlement
system
 
used
 
by
 
such
 
Agent for
 
that purpose.
(d)
 
Nothing in
 
this Agreement
 
shall oblige
 
the Facility
 
Agent or
 
any Mandated
 
Lead
Arranger to carry
 
out:
(i)
 
any
 
"know
 
your
 
customer"
 
or
 
other
 
checks
 
in
 
relation
 
to
 
any
 
person;
 
or
 
(ii)
 
or any
 
check on
 
the extent
 
to which
 
any transaction
 
contemplated by this
Agreement might be unlawful for
 
any Lender or for any Affiliate
 
of any
 
Lender,
on behalf of
 
any
 
Lender and
 
each Lender
 
confirms
 
to the
 
Facility Agent
 
and the
 
Mandated
Lead Arrangers that it is solely responsible for any such checks it is
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required to carry
 
out and
 
that it
 
may not
 
rely on
 
any statement
 
in relation
 
to such checks
made by the Facility Agent or the Mandated
 
Lead Arrangers.
(e)
 
Without
 
prejudice
 
to
 
any
 
provision
 
of
 
any
 
Finance
 
Document
 
excluding
 
or limitin
g
a
n
Agent's
 
liability,
 
any
 
liability
 
o
f
a
n
Agent
 
arising
 
under
 
or
 
in connection with
any
 
Finance
 
Document
 
shall
 
be
 
limited
 
to
 
the
 
amount
 
of
 
actual loss
 
which
 
has
 
been
suffered
 
(as determined by reference to the date of default of
 
the
 
Agent
 
or,
 
if
 
later,
 
the
date
 
on
 
which
 
the
 
loss
 
arises
 
as
 
a
 
result
 
of
 
such default)
 
but without reference to
 
any
special conditions or circumstances
 
known to the
 
Agent
 
at
 
any time
 
which increase
 
the
amount of that loss.
 
In no event
 
shall an Agent be liable for
 
any loss
 
of profits, goodwill,
reputation, business
 
opportunity
 
or
 
anticipated
 
saving,
 
or
 
for
 
special,
 
punitive,
 
indirect
 
or consequential
 
damages,
 
whether
 
or
 
not
 
the
 
Agent
 
has
 
been
advised
 
of
 
the possibility of such loss
 
or damages.
26.11
Lenders' indemnity to the Agents
 
The Lenders shall (in proportion to their
 
Commitments or, if the Total
 
Commitments
are
 
then
 
zero,
 
to
 
their
 
Commitments
 
immediately
 
prior
 
to
 
their
 
reduction
 
to
 
zero)
 
severally
indemnify each
 
Agent, within
 
three Business Days of
 
demand, against
 
any
 
cost, loss or liability
incurred
 
by
 
such
 
Agent
 
(otherwise
 
than
 
by
 
reason
 
of
 
such
 
Agent's
 
negligence
 
or
 
wilful
misconduct)
 
in
 
acting
 
as
 
Agent
 
under
 
the
 
Finance
 
Documents (unless
 
such
 
Agent
 
has
 
been
reimbursed
 
by
 
ABB
 
or
 
the
 
Borrowers
 
pursuant
 
to
 
a
 
Finance Document).
26.12
Resignation of an Agent
 
(a)
 
An Agent may resign and appoint one of its Affiliates as successor by giving
notice
 
to
 
the
 
Lenders and
 
ABB
provided
 
that
such
 
successor
 
shall act
 
(to
 
the
 
extent
relevant) out of an office in the following locations
 
(each a "
Required
Location
"):
(i)
 
in
 
the case
 
of the Facility
 
Agent, London or, subjec
t
to the
 
consent of ABB
(acting reasonably),
 
a location
 
within
 
a Participating
 
Member State;
(ii)
 
in the case
 
of the Dollar
 
Swingline Agent, New
 
York or, subject to the
 
consent of
ABB (acting reasonably), another location
 
within the United
 
States; and
(iii)
 
in
 
the
 
cas
e
of
 
th
e
Euro
 
Swingline
 
Agent,
 
London
 
or,
 
subject
 
to
 
the consent
of
 
ABB (acting
 
reasonably)
,
a
 
location within
 
a
 
Participating
 
Member State.
(b)
 
Alternatively an
 
Agent may resign
 
by giving
 
notice to the
 
Lenders and
 
ABB, in which
case the Majority Lenders may appoint
 
a successor Agent which will
 
act out of an office
in the relevant Required
 
Location.
(c)
 
If
 
the
 
Majority
 
Lenders
 
have
 
not
 
appointed
 
a
 
successor
 
Agent
 
in
 
accordance with
paragraph (b)
 
above within 30 days
 
after notice of resignation was
 
given, the
 
resigning
Agent
 
may
 
appoint
 
a
 
successor
 
Agent
 
which
 
will
 
act
 
out
 
of
 
an office in the relevant
Required Location.
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(d)
 
A successor Agent may only be appointed
 
with the prior consent
 
of ABB (such
consent not to be unreasonably withheld or delayed).
(e)
 
The retiring Agent shall, at its own
 
cost, make available to the successor
 
Agent
such
 
documents
 
and
 
records
 
and
 
provide
 
such
 
assistance as
 
the
 
successor
 
Agent
 
may
reasonably
 
request
 
for
 
the
 
purposes
 
of
 
performing
 
its
 
functions
 
as
 
Agent
 
under
 
the
Finance Documents.
(f)
 
Such Agent's
 
resignation notice shall only take effect upon the appointment of
a successor as contemplated in paragraphs (b) and
 
(c) above.
(g)
 
Upon
 
the
 
appointment
 
of
 
a
 
successor,
 
the
 
retiring
 
Agent
 
shall
 
be
 
discharged
from
 
any
 
further
 
obligation
 
in
 
respect
 
of
 
the
 
Finance
 
Documents
 
(other
 
than
 
its
obligations under paragraph (e)
 
above)
 
but
 
shall remain entitled to the benefit of Clause
15.
3
(
Indemnity to th
e
Facility Agent
) and
 
this
 
Claus
e
2
6
(and
 
any agency fees for the
account of
 
the retiring
 
Agent shall
 
cease to
 
accrue from
 
(and shall
 
be
 
payable
 
on)
 
that
date).
 
Its successor
 
and each
 
of the
 
other Parties
 
shall
 
have the
 
same rights
 
and obligations
amongst themselves
 
as they would have
 
had if such successor
 
had been an original
 
Party.
(h)
 
The Facility Agent
 
shall resign
 
in accordance
 
with paragraph
 
(b) above
 
(and,
 
to the extent
applicable,
 
shall
 
use
 
reasonable
 
endeavours
 
to
 
appoint
 
a
 
successor Agent pursuant
 
to
paragrap
h
(c
)
above)
 
if
 
on
 
or after
 
the
 
date
 
which
 
is
 
three months before the earliest
FATCA
 
Application Date
 
relating to any
 
payment
 
to the
 
Facility Agent
 
under the
 
Finance
Documents, either:
(i)
 
the
 
Facility
 
Agent
 
fails
 
to
 
respond
 
to
 
a
 
request
 
under
 
Claus
e
13.9
 
(
FAT
 
CA
Information
) and
 
ABB or
 
a Lender
 
reasonably believes
 
that the
 
Facility
 
Agent
will not
 
be (or
 
will have
 
ceased to
 
be) a
 
FATC
 
A
 
Exempt Party on
 
or after
 
that
FATCA
 
Application Date;
(ii)
 
the information supplied
 
by the Facility
 
Agent pursuant to Clause
 
13.9 (
FAT
 
CA
Information
)
 
indicates
 
that
 
the
 
Facility Agent will
 
not
 
be
 
(or will have ceased
to be) a FATCA
 
Exempt Party on or after
 
that FATCA Application Date; or
(iii)
 
the Facility Agent notifies ABB and the Lenders that the Facility Agent
 
wil
l
not
be (or
 
will have ceased to
 
be) a
 
FATCA
 
Exempt Party
 
on or after that
 
FATCA
Application Date;
and
 
(in
 
each
 
case)
 
ABB
 
or
 
a
 
Lender
 
reasonably
 
believes
 
that
 
a
 
Party
 
will
 
be required
to make
 
a
 
FATCA
 
Deduction that
 
would
 
not
 
be
 
required
 
if the
 
Facility Agent
 
were
 
a
FATCA
 
Exempt
 
Party,
 
and that
 
Lender,
 
by
 
notice to
 
the
 
Facility
 
Agent, requires
 
it
 
to
resign.
26.13
Replacement of an Agent
(a)
 
After
 
consultation
 
with
 
ABB,
 
the
 
Majority
 
Lenders
 
may,
 
by
 
giving
 
30
 
days'
notice to an Agent (or, at any time an Agent is an Impaired Agent, by giving any shorter
notice determined by
 
the Majority
 
Lenders) replace that
 
Agent by appointing a successor
Agent
 
acting
 
out of an office
 
in
 
the relevant
 
Required
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Location.
 
A successor Agent may only be appointed with
 
the prior consent of
 
ABB
(such consent not to be unreasonably withheld or delayed).
(b)
 
The retiring Agent shall
 
(at its own
 
cost if it
 
is an Impaired Agent
 
and otherwise at
 
the
expense
 
of
 
the
 
Lenders)
 
make
 
available
 
to
 
the
 
successor
 
Agent
 
such documents and
records and provide
 
such assistance
 
as the
 
successor
 
Agent
 
may reasonably
 
request for the
purposes of performing
 
its functions as Agent
 
under the Finance Documents.
(c)
 
The appointment of a successor
 
Agent shall
 
take effect on the date
 
specified in the notice
from the
 
Majority Lenders
 
to the retiring
 
Agent.
 
As from
 
that date, the
 
retiring Agent
shall be discharged from any further obligation
 
in respect of the Finance Documents but
shall remain
 
entitled to the
 
benefit of this Clause
 
26 (and any agency fees for the account
of the retiring Agent shall cease
 
to accrue from (and shall be payable on) that
 
date).
(d)
 
Any
 
successor
 
Agent
 
and
 
each
 
of
 
the
 
other
 
Parties
 
shall
 
have
 
the
 
same
 
rights and
obligations amongst
 
themselves as
 
they would
 
have had
 
if such
 
successor had been
 
an
original Party.
26.14
Confidentiality
(a)
 
In acting as
 
agent for
 
the Finance
 
Parties, each
 
Agent shall
 
be regarded
 
as acting
through its agency division which shall be treated as
 
a separate entity
 
from any other of
its divisions or departments.
(b)
 
If information
 
is received
 
by another
 
division or
 
department of
 
an Agent,
 
it may
 
be treated
as
 
confidential to
 
that
 
division or
 
department
 
and
 
such
 
Agent
 
shall not be
 
deemed to
have notice of it.
(c)
 
Notwithstanding any other provision of any
 
Finance Document to
 
the contrary, no Agent
or Mandated Lead
 
Arranger is obliged
 
to disclose to
 
any other
 
person (i) any confidential
information
 
or
 
(ii)
 
any
 
other
 
information
 
if
 
the
 
disclosure
 
would
 
or
 
might
 
in
 
its
reasonable
 
opinion
 
constitute
 
a
 
breach
 
of
 
any
 
law or
 
a breach
 
of a fiduciary duty.
26.15
Relationship
 
with the Lenders
(a)
 
Subject to Clause 23.10
 
(
Pro rata interest settlement
), each Agent
 
may treat
 
the
person
 
shown
 
in
 
its
 
records
 
as
 
Lender at
 
the
 
opening
 
of
 
business
 
(in
 
the
 
place
 
of
 
the
relevant Agent's principal office
 
as notified to the
 
Finance Parties from time to
 
time) as
the Lender acting through its Facility
 
Office:
 
(i)
 
entitled to or liable for any payment due under any
 
Finance Document
on that day; and
 
(ii)
 
entitled
 
to
 
receive
 
and
 
act
 
upon
 
any
 
notice,
 
request,
 
document
 
or
communication
 
or
 
make
 
any
 
decision
 
or determination
 
under
 
any
 
Finance
Document made or delivered on that day,
unless
 
it
 
has
 
received
 
not
 
less
 
than
 
5
 
Business
 
Days'
 
prior
 
notice
 
from
 
that Lender
to the contrary in accordance with the terms
 
of this Agreement.
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(b)
 
Any Lender may by notice
 
to the Facility Agent,
 
appoint a person
 
to receive
 
on its behalf
all notices,
 
communications,
 
information and
 
documents
 
to be
 
made or despatched
 
to that
Lender under the Finance
 
Documents.
 
Such notice shall contain the
 
address, fax number
and (where communication by
 
electronic mail or
 
other
 
electronic
 
means
 
is
 
permitted
under
 
paragrap
h
(b
)
of
 
Claus
e
31.1 (
Communications
 
in
 
writing
))
 
electronic
 
mail
 
address
 
and/or
 
any
 
other
 
information
 
required
 
to
 
enable
 
th
e
transmissio
n
of
information by
 
that means (and,
 
in
 
each
 
case,
 
the
 
department
 
or
 
officer,
 
if
 
any,
 
for
 
whose
 
attention communication
 
is to
 
be
 
made)
 
and
 
be
 
treated
 
as a
 
notification
 
of
 
a
substitute
 
address,
 
fax
 
number,
 
electronic
 
mail
 
address
 
(or
 
such
 
other
 
information),
department
 
and
 
officer
 
by
 
that
 
Lender
 
for
 
the
 
purposes
 
of
 
Clause 31.2
 
(
Addresses
)
and paragraph
 
(b) of Clause
 
31.1 (
Communications in writing
) and each Agent shall be
entitled
 
to
 
treat
 
such
 
person
 
as
 
the
 
person
 
entitled
 
to
 
receive
 
all
 
such
 
notices,
communications,
 
information
 
and documents
 
as
 
though
 
that person were that Lender.
26.16
Credit appraisal by the Lenders
 
Without affecting the responsibility of each Obligor for information
 
supplied by it or
on its behalf in connection with
 
any Finance Document, each Lender
 
confirms to each
 
Agent and
each Mandated
 
Lead Arranger
 
that it
 
has been,
 
and will
 
continue to
 
be, solely
 
responsible
 
for
making
 
its
 
own
 
independent
 
appraisal
 
and
 
investigation
 
of
 
all
 
risks
 
arising
 
under
 
or
 
in
connection with any
 
Finance Document
 
including but not
 
limited to:
(a)
 
the financial condition, status and nature
 
of each Group Company;
 
(b)
 
the legality, validity, effectiveness, adequacy or enforceability
 
of any Finance
Document
 
and
 
any
 
other
 
agreement,
 
arrangement
 
or
 
document
 
entered
 
into,
 
made or
executed in anticipation of, under or i
n
connection with any Finance Document;
(c)
 
whether
 
that
 
Lender
 
has recourse,
 
and
 
the
 
nature
 
and
 
extent
 
of
 
that
 
recourse, against
any
 
Party
 
or
 
any
 
of
 
its
 
respective
 
assets
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
Document,
 
the
 
transactions
 
contemplated
 
by
 
the
 
Finance
 
Documents
 
or
 
any
 
other
agreement, arrangement
 
or document entered
 
into, made or
 
executed in anticipation of,
under or in connection with any
 
Finance Document; and
(d)
 
the
 
adequacy,
 
accuracy
 
or
 
completeness
 
of
 
the
 
Information
 
Package
 
and
 
any other
information
 
provided by
 
an Agent,
 
any
 
other Party
 
or
 
by any
 
other person
 
under
 
or
 
in
connection
 
with
 
any
 
Finance
 
Document,
 
a
 
Mandated
 
Lead
 
Arranger
 
the
 
transactions
contemplated
 
by
 
an
y
Finance
 
Document
 
or
 
any
 
other
 
agreement,
 
arrangement or
 
document
entered
 
into
,
made
 
or
 
executed
 
in
 
anticipation
 
of,
 
under
 
or
 
in
 
connection
 
with
 
any
Finance Document.
26.17
Deduction from amounts payable by an Agent
 
If any Party owes an amount
 
to an Agent under
 
the Finance Documents, the
 
relevant
Agent
 
may,
 
after
 
giving
 
notice
 
to
 
that
 
Party,
 
deduct
 
an
 
amount
 
not
 
exceeding
 
that amount
from any payment to that Party which
 
such Agent would
 
otherwise be obliged
 
to
 
make under the
Finance
 
Documents
 
and apply
 
the
 
amount deducted in
 
or towards
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satisfaction of
 
the amount
 
owed.
 
For the purposes
 
of the Finance
 
Documents
 
that Party
 
shall be
regarded as having received any amount so
 
deducted.
26.18
Amounts paid in error
 
(a)
 
If the Agent pays an amount to another Party and the Agent notifies that Party
that
 
such
 
payment
 
was
 
an
 
Erroneous
 
Payment
 
then
 
the
 
Party
 
to
 
whom
 
that amount
was
 
paid
 
by the
 
Agent
 
shall
 
on
 
demand
 
refund
 
the
 
same
 
to
 
the
 
Agent
 
together
 
wit
h
(unless
 
otherwise
 
agreed
 
by
 
the
 
Agent
 
in
 
its
 
sole
 
discretion)
 
interest on that amount
from the date of payment to the
 
date
 
of receipt by the Agent, calculated by the
 
Agent to
reflect its cost of funds.
(b)
 
Neither:
(i)
 
the obligations of any Party to the Agent; nor
(ii)
 
the remedies of the Agent,
(whether
 
arising
 
under
 
this
 
Clause
 
26.18
 
or
 
otherwise)
 
which
 
relate
 
to
 
an
 
Erroneous
Payment
 
will
 
be
 
affected
 
by
 
any
 
act,
 
omission
,
matter
 
or
 
thing
 
(including, without
limitation, any obligation
 
pursuant to which an Erroneous Payment is
 
made) which,
 
but
for this
 
paragraph (b), would reduce, release
 
or
 
prejudice any such obligation
 
or remedy
(whether or not known by the Agent
 
or any other Party).
(c)
 
All payments to be made by a
 
Party to the Agent (whether made pursuant to this Clause
26.18
 
or
 
otherwise)
 
which
 
relate
 
to
 
an
 
Erroneous
 
Payment
 
shall
 
be
 
calculated and be
made without (and
 
free and clear
 
of any deduction for) set-off
 
or counterclaim.
(d)
 
In this Agreement, "Erroneous Payment" means
 
a payment of an amount
 
by the
 
Agent to
another Party which the Agent determines (in its sole discretion)
 
was made in error.
27.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement
 
will:
 
(a)
 
interfere
 
with
 
the
 
right
 
of
 
any
 
Finance
 
Party
 
to
 
arrange
 
its
 
affairs
 
(tax
 
or
otherwise) in whatever manner it
 
thinks fit;
 
(b)
 
oblige any Finance Party to investigate or
 
claim
 
any credit,
 
relief, remission or
repayment available to it or the extent, order and manner
 
of any claim; or
 
(c)
 
oblige any Finance Party to disclose any information
 
relating to its affairs (tax
or otherwise) or any computations in respect of Tax.
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28.
SHARING AMONG THE LENDERS
28.1
Payments to Lenders
If a Lender (a "
Recovering Lender
") receives or recovers any amount from ABB or a Borrower
 
other
 
than
 
in
 
accordance
 
with
 
Clause
 
29
 
(
Payment
 
Mechanics
)
 
(a
"
Recovered Amount
") and applies
 
that amount to a payment due under the Finance Documents
then:
 
(a)
 
the
 
Recovering
 
Lender
 
shall,
 
within
 
3
 
Business
 
Days
,
notify
 
details
 
of
 
the
receipt or recovery to the Facility
 
Agent;
 
(b)
 
the Facility Agent
 
shall determine
 
whether the receipt or recovery is
 
in excess
of the amount the Recovering
 
Lender would have been paid
 
had the receipt or recovery
 
been
 
received
 
or
 
made
 
by
 
the
 
Facility
 
Agent
 
and
 
distributed
 
in accordance with
Claus
e
29 (
Payment
 
Mechanics
), without
 
taking account
 
of any
 
Tax
 
which
 
would
 
be
imposed on the
 
Facility
 
Agent in
 
relation to the
 
receipt, recovery
 
or distribution;
 
and
(c)
 
the
 
Recovering
 
Lender
 
shall
,
within
 
three
 
Business
 
Days
 
of
 
demand
 
by
 
the Facility
Agent,
 
pay
 
to
 
the
 
Facility Agent
 
an
 
amount
 
(the
 
"
Sharing
 
Payment
") equal
 
to
 
such
receipt
 
or
 
recovery
 
less
 
any
 
amount
 
which
 
the
 
Facility
 
Agent determines
 
may
 
be
retained
 
by
 
the
 
Recovering
 
Lender
 
as
 
its
 
share
 
of
 
any payment
 
to
 
be
 
made, in
accordance with Clause 29.6 (
Partial payments
).
28.2
Redistribution of payments
 
The Facility Agent shall treat the Sharing
 
Payment as if it had been paid
 
by ABB or the
relevant Borrower (as
 
the case may be)
 
and distribute it between the Finance Parties (other than
the
 
Recovering
 
Lender)
 
(the
 
"
Sharing
 
Finance
 
Parties
")
 
in
 
accordance with
 
Clause 29.
6
(
Partial
 
payments
)
 
towards
 
the
 
obligations
 
of
 
that
 
Obligor
 
to
 
the
 
Sharing Finance
 
Parties.
28.3
Recovering Lender's rights
 
On a distribution
 
by the Facility Agent under Clause
 
28.2 (
Redistribution
 
of payments
)
of a
 
payment received by a
 
Recovering Finance Party
 
from an Obligor,
 
as between the relevant
Obligor
 
and
 
the
 
Recovering
 
Finance
 
Party,
 
an
 
amount
 
of
 
the
 
Recovered
 
Amount equal to
the Sharing Payment will be treated as not having
 
been paid by that Obligor.
28.4
Reversal of redistribution
 
If
 
any
 
part
 
of
 
the
 
Sharing
 
Payment
 
received
 
or
 
recovered
 
by
 
a
 
Recovering
 
Lender
becomes repayable and is repaid by that Recovering
 
Lender, then:
 
(a)
 
each Sharing Finance Party shall, upon
 
request of the Facility Agent, pay
 
to the
Facility Agent for the account of that
 
Recovering Lender an amount equal to
 
its share
 
of
the
 
Sharing
 
Payment
 
(together
 
with
 
an
 
amount
 
as
 
is
 
necessary
 
to reimburse
 
that
Recovering
 
Lender
 
for
 
its
 
proportion
 
of
 
any
 
interest
 
on
 
the
 
Sharing
 
Payment
 
which
 
that
 
Recovering
 
Lender
 
is
 
required
 
to
 
pay)
 
(the
 
"
Redistributed Amount
"); and
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(b)
 
as
 
between
 
the
 
relevant
 
Obligor
 
and
 
each
 
relevant
 
Sharing
 
Finance
 
Party,
 
an amount
equal to
 
the relevant
 
Redistributed
 
Amount will
 
be treated
 
as not
 
having
 
been paid by that
Obligor.
28.5
Exceptions
 
(a)
 
This Clause 28 shall not apply to the extent that the Recovering Lender would
not,
 
after
 
making
 
any
 
payment
 
pursuant
 
to
 
this
 
Clause,
 
have
 
a
 
valid
 
and
enforceable claim against ABB or the relevant Borrower
 
(as the case may be).
(b)
 
A Recovering
 
Lender is
 
not obliged
 
to share
 
with any
 
other Finance
 
Party any
 
amount
which
 
the
 
Recovering
 
Lender
 
has
 
received
 
or
 
recovered
 
as
 
a result
 
of
 
taking
 
legal
 
or
arbitration proceedings, if:
(i)
 
it
 
notified
 
the
 
other
 
Lenders
 
of
 
the
 
legal
 
or
 
arbitration
 
proceedings;
 
and
 
(ii)
 
the
 
other
 
Lender
 
had
 
an
 
opportunity
 
to
 
participate
 
in
 
those
 
legal
 
or
arbitration
 
proceedings
 
but
 
did
 
not
 
do
 
so
 
as
 
soon
 
as
 
reasonably
 
practicable
having
 
received
 
notice
 
or
 
did
 
not
 
take
 
separate
 
legal
 
or
 
arbitration
proceedings.
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SECTION 10
ADMINISTRATION
29.
PAYMENT
 
MECHANICS
29.1
Payments to the Agents
(a)
 
For the purpose of this Clause 29 a reference to the "
Relevant Agent
" means:
 
(i)
 
in relation to payments
 
under the Dollar Swingline Facility, the Dollar
Swingline Agent;
 
(ii)
 
in
 
relation
 
to
 
payments
 
under
 
the
 
Euro
 
Swingline
 
Facility,
 
the
 
Euro
Swingline Agent; and
(iii)
 
for all
 
other payments, the Facility Agent.
(b)
 
On each
 
date
 
on which
 
a Borrower or
 
a Lender
 
is required
 
to make a
 
payment under
 
a
Finance Document, such Borrower or,
 
as the case may be, such Lender shall
 
make
 
the
 
same
 
available
 
to
 
the
 
Relevant
 
Agent
 
(unless
 
a
 
contrary indication appears in
 
a
Finance Document) for value on the due date at the
 
time and in
 
such
 
funds specified
 
by
the
 
Relevant
 
Agent
 
as being
 
customary
 
at
 
the time
 
for
 
settlement
 
of
 
transactions
 
in
the
 
relevant
 
currency
 
in
 
the
 
place
 
of payment.
(c)
 
Payment shall be made to such account in the principal
 
financial centre of the country of
that
 
currency (or,
 
in relation
 
to
 
Euro, in
 
a principal
 
financial centre
 
in
 
a
 
Participating
Member
 
State
 
or
 
London)
 
with
 
such
 
bank
 
as
 
the
 
Relevant Agent specifies.
29.2
Distributions by the Agents
 
Each
 
payment received by
 
an
 
Agent under the Finance Documents for
 
another Party
shall, subject to Clause 29.3 (
Distributions to the Obligors
) and Clause 29.4
 
(
Clawback
and pre-
funding
) be made available
 
by such Agent
 
as soon as practicable
 
after receipt to the
 
Party entitled
to receive payment in
 
accordance with this Agreement
 
(in the case
 
of a Lender, for the account of
its Facility
 
Office), to such
 
account as that
 
Party may notify to
 
the relevant Agent
 
by not less
 
than
5 Business
 
Days' notice
 
with a
 
bank
 
in the
 
principal financial
 
centre
 
of the
 
country of
 
that currency
(or,
 
in
 
relation
 
to
 
Euro,
 
in
 
the
 
principal
 
financial
 
centre
 
of
 
a
 
Participating
 
Member
 
State
 
or
London).
29.3
Distributions to the Obligors
 
An Agent may (with the consent of ABB
 
or the relevant Borrower
 
(as the case
 
may be)
or
 
in
 
accordance
 
with
 
Clause
 
30
 
(
Set-Off
))
 
apply
 
any amount
 
received
 
by
 
it
 
for
 
ABB or
 
that
Borrower
 
in
 
or
 
towards payment
 
(on
 
the date
 
and in
 
the
 
currency
 
and funds
 
of receipt)
 
of any
amount due from ABB or that
 
Borrower (as the case may
 
be) under the Finance Documents
 
or in
or towards purchase of any
 
amount of any currency to be
 
so applied.
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29.4
Clawback and pre-funding
(a)
 
Where a sum
 
is to be
 
paid to
 
an Agent
 
under the Finance
 
Documents for another
Party,
 
such Agent
 
is not obliged
 
to pay
 
that sum
 
to that
 
other Party
 
(or to
 
enter into
 
or
perform any
 
related exchange contract) until
 
it has been
 
able to establish to its absolute
satisfaction that it
 
has actually received
 
that sum
 
(and such
 
Agent shall make
 
such due
enquiry as a diligent agent
 
would make in so
 
establishing).
(b)
 
If an Agent pays an amount to another Party and it proves to be the case
 
that such Agent
had
 
not
 
actually
 
received
 
that
 
amount,
 
then
 
the
 
Party
 
to
 
whom
 
that
 
amount
 
(or
 
the
proceeds
 
of
 
any
 
related
 
exchange
 
contract)
 
was
 
paid
 
by
 
such Agent shall on demand
refund the
 
same to such Agent
 
together with interest on that
 
amount
 
from
 
the
 
date
 
of
payment
 
to
 
the
 
date
 
of
 
receipt
 
by
 
such
 
Agent, calculated by such Agent to
 
reflect its
cost of funds.
(c)
 
If an Agent
 
has notified the Lenders that
 
it is willing to make
 
available amounts for the
account of a Borrower before receiving funds from
 
the Lenders then if and to the extent
that an Agent does so
 
but it
 
proves to be
 
the case
 
that it
 
does not then
 
receive funds
 
from
a
 
Lender
 
in
 
respect
 
of
 
a
 
sum
 
which
 
it
 
paid
 
to
 
a Borrower:
(i)
 
the Agent shall notify ABB of that Lender's identity, and the Borrower to whom
that sum was made available shall on demand refund it to the Agent;
 
and
(ii)
 
the
 
Lender
 
by
 
whom
 
those
 
funds
 
should
 
have
 
been
 
made
 
available
 
shall
 
on
demand
 
pay
 
to
 
the
 
Agent
 
the
 
amount
 
(as
 
certified
 
by
 
the
 
Agent) which will
indemnify the Agent against any
 
funding cost
 
incurred by it
 
as a result of paying
out that sum before
 
receiving those funds
 
from that
 
Lender.
(d)
 
In the
 
event that a
 
Lender fails to
 
make its participation
 
in an Advance available
 
to the
Relevant Agent (as defined in Clause 29.1
 
(
Payments to the Agents
)) in accordance with
the terms
 
of
 
this Agreement,
 
such Lender
 
hereby
 
indemnifies
 
the
 
Relevant
 
Agent
 
on
demand
 
against
 
all
 
costs,
 
losses
 
and
 
expenses that
 
the Relevant
 
Agent
 
may
 
incur
 
as
 
a
 
result
 
of
 
such
 
failure
 
(including,
 
without limitation, where the Relevant Agent, at
its sole option,
 
makes arrangements
 
to
 
make available
 
to the
 
relevant Borrower
 
an amount
equal to said participation).
(e)
 
For
 
the
 
purposes
 
of
 
paragrap
h
(d
)
of
 
this
 
Claus
e
29.4,
 
if
 
a
 
Lender
 
makes
 
its
participation available to
 
the Relevant Agent
 
after 3.00 p.m.
 
(London time) or,
 
in the case
of
 
a
 
Dollar
 
Swingline
 
Advance,
 
3.00
 
p.m.
 
(New
 
Yor
 
k
 
time)
 
on
 
the
 
due
 
date,
 
such
participation
 
shall
 
be
 
deemed
 
to
 
have
 
been
 
made
 
available
 
on
 
the
 
Business
 
Day
immediately succeeding the said due date.
29.5
Impaired Agents
(a)
(i)
 
If, at any time, an Agent becomes an Impaired Agent,
 
an Obligor or a Lender
 
which
 
is
 
required
 
to
 
make
 
a
 
payment
 
under
 
the
 
Finance
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Documents
 
to
 
that
 
Agent
 
in
 
accordance
 
with
 
Clause
 
29.1
 
(
Payments
 
to
the
Agents
)
 
may
 
(or
 
shall,
 
in
 
the
 
case
 
of
 
a
 
payment
 
by
 
a
 
Lender
 
if paragrap
h
(ii
)
below
 
applies)
 
instead
 
pay
 
that
 
amount
 
direct
 
to
 
the required recipient
or
 
(except
 
where
 
paragrap
h
(ii
)
below
 
applies)
 
pay that
 
amount to an
 
interest-
bearing account
 
held with
 
an Acceptable
 
Bank in
 
relation to which
 
no Insolvency
Event has
 
occurred and
 
is continuing,
 
in
 
the
 
name
 
of
 
the
 
Obligor
 
or
 
the
 
Lender
making
 
the
 
payment
 
and
 
designated
 
as
 
a
 
trust
 
account
 
for
 
the
 
benefit
 
of
 
the
Party
 
or
 
Parties
 
beneficially
 
entitled
 
to
 
that
 
payment
 
under
 
the
 
Finance
Documents.
 
In each
 
case
 
such
 
payments
 
must
 
be
 
made
 
on
 
the
 
due
 
date
 
for
payment
 
under the Finance Documents.
(ii)
 
This
 
paragraph
 
(ii)
 
applies
 
in
 
relation
 
to
 
a
 
payment
 
by
 
a
 
Lender
 
if
 
ABB
 
has
notified
 
that
 
Lender
 
in
 
writing
 
on
 
or
 
before
 
the
 
dat
e
falling
 
3
 
Business Day
prior to the date
 
for payment
 
(or 1 Business Day
 
prior to the
 
date
 
for
 
payment
in
 
respect
 
of
 
any
 
Swingline
 
Advance),
 
that
 
the relevant Agent is an Impaired
Agent and that this paragraph
 
(ii) applies to
 
such payment.
(b)
 
All
 
interest
 
accrued
 
on
 
the
 
amount
 
standing
 
to
 
the
 
credit
 
of
 
the
 
trust
 
account shall be
for
 
the
 
benefit
 
of
 
the
 
beneficiaries
 
of
 
that
 
trust
 
account
pro
 
rata
to
 
their
 
respective
entitlements.
(c)
 
A Party
 
which
 
has made
 
a payment
 
in accordance
 
with this
 
Clause 29.5
 
shall
 
be
 
discharged
of
 
the
 
relevant
 
payment
 
obligation
 
under
 
the
 
Finance
 
Documents and shall
 
not
 
take
any credit
 
risk
 
with respect to
 
the
 
amounts standing to the credit of the trust account.
(d)
 
Promptly
 
upon
 
the
 
appointment
 
of
 
a
 
successor
 
Agent
 
in
 
accordance
 
with Clause
26.1
2
(
Resignation of
 
an Agent
)
 
o
r
26.1
3
(
Replacement of
 
an Agent
), each
 
Party which
has made a payment to a trust
 
account in accordance with this Clause 29.5 shall give all
requisite
 
instructions
 
to
 
the
 
bank
 
with
 
whom
 
the
 
trust account
 
is
 
held
 
to
 
transfer
 
the
amount (together
 
with any
 
accrued interest)
 
to
 
the successor
 
Agent
 
for
 
distribution
 
in
accordance with Clause 29.2 (
Distributions
by the Agents
).
(e)
 
In this Clause
 
29.5 "
Acceptable
 
Bank
" means a
 
bank which has a
 
rating for
 
its long-term
unsecured and
 
non credit-enhanced
 
debt
 
obligations of
 
A- or
 
higher
 
by Standard
 
& Poor's
Rating
 
Services
 
or
 
A3
 
or
 
higher
 
by
 
Moody's
 
Investor
 
Services Limited.
 
(f)
 
Each Agent shall notify ABB, the
 
other Agents and
 
the Lenders promptly
 
after
becoming an Impaired
 
Agent.
 
29.6
Partial payments
(a)
 
If an Agent receives a payment that
 
is insufficient to discharge all
 
the amounts then due
and payable by ABB or the Borrowers under the Finance Documents,
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such
 
Agent
 
shall
 
apply
 
that
 
payment
 
towards
 
the
 
obligations
 
of
 
the
 
Obligors
 
under
the Finance Documents
 
in the following order:
(i)
first
,
 
in
 
or
 
towards
 
paymen
t
pro
 
rat
a
of
 
any
 
unpaid
 
fees,
 
costs
 
and
expenses of the Agents under the Finance
 
Documents;
(ii)
secondly
,
 
in
 
or
 
towards
 
paymen
t
pro
 
rat
a
of
 
any
 
accrued
 
interest
 
or
commission due but unpaid under
 
this Agreement;
(iii)
thirdly
, in or towards payment
pro rata
of any
 
principal due but
 
unpaid
under this Agreement; and
(iv)
fourthly
, in
 
or towards
 
payment
pro rata
of any
 
other sum
 
due but
 
unpaid
under the Finance Documents.
(b)
 
The Facility Agent shall, if so directed
 
by the Majority Lenders, vary the
 
order
set out in paragraphs (a)(ii) to (iv)
 
above.
(c)
 
Paragraphs (a) and
 
(b) above will override any appropriation made by
 
ABB or
any Borrower.
29.7
No set-off by Obligors
All
 
payments
 
to
 
be
 
made
 
by
 
ABB
 
or
 
the
 
Borrowers
 
under
 
the
 
Finance
 
Documents
 
shall
 
be
calculated and be made without (and free and clear
 
of any deduction for) set-off or
 
counterclaim.
29.8
Business Days
(a)
 
Any payment which is due
 
to be made on a day that is
 
not a Business
 
Day shall
be made on the next Business
 
Day in the same calendar month (if
 
there is one) or the
preceding Business
 
Day (if there is not).
(b)
 
During any
 
extension of
 
the due
 
date for
 
payment of
 
any
 
principal or
 
an Unpaid
 
Sum
 
under
this Agreement interest
 
is payable on the
 
principal at the rate
 
payable on the original due
date.
29.9
Currency of account
(a)
 
Subject
 
to
 
paragraph
s
(b
)
t
o
(e
)
below,
 
the
 
Base Currency
 
is
 
the
 
currency
 
of
account and payment for any sum due from ABB or the Borrowers under
 
any Finance
Document.
(b)
 
A repayment of
 
an Advance
 
or Unpaid Sum or
 
a part of
 
an Advance
 
or Unpaid
 
Sum shall
be
 
made
 
in
 
the
 
currency
 
in
 
which
 
that Advance or
 
Unpaid
 
Sum
 
is denominated on its
due date.
(c)
 
Each
 
payment
 
of
 
interest
 
shall
 
be
 
made
 
in
 
the
 
currency
 
in
 
which
 
the
 
sum
 
in respect
of
 
which
 
the
 
interest
 
is
 
payable
 
was
 
denominated
 
when
 
that
 
interest
 
accrued.
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(d)
 
Each
 
payment
 
in
 
respect
 
of
 
costs,
 
expenses
 
or
 
Taxes
 
shall
 
be
 
made
 
in
 
the
currency in which
 
the costs, expenses or Taxes are incurred.
(e)
 
Any amount expressed
 
to be payable
 
in a
 
currency other than
 
the Base
 
Currency
shall be paid in that other currency.
29.10
Change of currency
(a)
 
Unless otherwise prohibited by law, if more than one currency
 
or currency unit
 
are at the
same time
 
recognised by the
 
central bank
 
of any
 
country as
 
the lawful currency of
 
that
country, then:
(i)
 
any reference in the
 
Finance Documents
 
to, and
 
any obligations arising
 
under the
Finance Documents
 
in, the
 
currency of
 
that country
 
shall be
 
translated into,
 
or
paid in, the
 
currency or currency unit
 
of that country
 
designated by the Facility
Agent (after consultation
 
with ABB); and
(ii)
 
any
 
translation
 
from
 
one
 
currency
 
or
 
currency
 
unit to
 
another shall
 
be
 
at
 
the
official
 
rate
 
of
 
exchange
 
recognised
 
by
 
the
 
central
 
bank
 
for
 
the conversion
of
 
that
 
currency
 
or
 
currency
 
unit
 
into
 
the
 
other,
 
rounded
 
up
 
or
 
down
 
by
 
the
Facility Agent (acting reasonably).
(b)
 
If
 
a
 
change in
 
any
 
currency of
 
a country
 
occurs,
 
this Agreement
 
will,
 
to the extent the
Facility
 
Agent
 
(acting
 
reasonably
 
and
 
after
 
consultation
 
with
 
ABB)
 
specifies
 
to
 
be
necessary,
 
be amended
 
to comply
 
with any
 
generally accepted
 
conventions and market
practice in the
 
Relevant Market
 
and otherwise
 
to reflect
 
the change in currency.
30.
SET-OFF
Without
 
prejudice
 
to
 
the
 
rights
 
at
 
law
 
of
 
each
 
Finance
 
Party,
 
while
 
an
 
Event
 
of
 
Default
 
is
continuing, a Finance Party may set off any matured obligation due from
 
ABB or the Borrowers
under
 
the
 
Finance
 
Documents
 
(to
 
the
 
extent
 
beneficially
 
owned
 
by
 
that
 
Finance Party) against
any matured obligation
 
owed by that
 
Finance Party
 
to ABB
 
or the Borrowers, regardless of the
place
 
of payment,
 
booking
 
branch
 
or
 
currency
 
of either
 
obligation.
 
If
 
the obligations
 
are
 
in
 
different
currencies, the Finance Party may convert
 
either
 
obligation
 
at
 
a
 
market
 
rate
 
of
 
exchange
 
in
 
its
usual
 
course
 
of
 
business for
 
the
 
purpose of the set-off.
31.
NOTICES
31.1
Communications in writing
(a)
 
Any
 
communication
 
to
 
be
 
made
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
Documents shall be made in writing
 
and, unless otherwise stated, may
 
be made
 
by fax
or letter.
(b)
 
With the consent
 
of the
 
relevant Lender, the
 
Agents may serve
 
notices and other
information on a Lender by way of electronic mail.
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31.2
Addresses
(a)
 
The address, electronic mail address (if
 
any) and fax number (if any) (and the
department or
 
officer, if
 
any,
 
for whose
 
attention the communication
 
is to be made)
 
of
 
each
 
Party
 
for
 
any
 
communication
 
or
 
document
 
to
 
be
 
made
 
or delivered under or
in connection with the Finance Documents
 
is:
(i)
 
in
 
the
 
case
 
of
 
the
 
Original
 
Obligors,
 
that
 
identified
 
i
n
Part
 
I
V
(
The
Original Obligors
) of Schedule 1, with a copy
 
to ABB;
(ii)
 
in the case of ABB,
 
that identified in
 
Part IV
 
(
The Original Obligors
) of
Schedule 1;
(iii)
 
in
 
the
 
case of an
 
Additional Borrower, that
 
identified in
 
the
 
Borrower
Accession Letter
 
relating
 
to
 
that Additional
 
Borrower,
 
with
 
a
 
copy to ABB;
(iv)
 
in the case of each Lender, that notified in writing to
 
the Facility Agent
on or prior to the date on which it becomes a Party; and
 
(v)
 
in the case of an Agent, that identified in paragraph
 
(b) below,
or any substitute address, electronic
 
mail address, fax
 
number or department
 
or officer as
the Party may notify
 
to the Facility Agent (or the Facility Agent may
 
notify to the other
Parties, if
 
a change
 
is made
 
by the
 
Facility Agent)
 
by not
 
less
 
than 5
 
Business
 
Days' notice.
(b)
(i)
 
the Facility Agent:
Citibank Europe plc, UK Branch
EME
A
Loans Agency
5
t
h
Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square
London E14 5LB
United Kingdom
Electronic mail
 
addresses: karen.hall@citi.com/
 
alasdair.garnham@citi.com
(ii)
 
the Dollar Swingline Agent:
Citibank, N.A.
Global Loans
1615 Brett Road, Ops III
New Castle, DE 19720
GLAgentOfficeOps@citi.com
Fax:
 
+1 212 994 0961
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(iii)
 
the Euro Swingline
 
Agent:
Citibank Europe plc, UK Branch
EME
A
Loans Agency
5
t
h
Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square
London E14 5LB
United Kingdom
Electronic mail
 
addresses:
 
karen.hall@citi.com /
 
alasdair.garnham@citi.com
31.3
Delivery
(a)
 
Any communication or document made or delivered by one person to another
under or in connection with
 
the Finance Documents will only be effective:
(i)
 
if by way
 
of fax, when received in legible form; or
 
(ii)
 
if by way of letter, when it has been left at the relevant
 
address or 5 (in
the
 
case
 
of
 
domestic mail)
 
or
 
10
 
(in
 
the
 
case of
 
air
 
mail)
 
Business Days
 
after
 
being
 
deposited
 
in
 
the
 
post
 
postage
 
prepaid
 
in
 
an
 
envelope
 
addressed to it
at that address; or
(iii)
 
if by way
 
of electronic mail, when received.
and, if a
 
particular department
 
or officer
 
is specified
 
as part of
 
its address
 
details provided
under
 
Claus
e
31.
2
(
Addresses
),
 
if
 
addressed
 
to
 
that
 
department
 
or officer
,
provided
tha
t
if
 
receipt
 
is
 
on
 
a
 
day
 
that is
 
not
 
a
 
working
 
day
 
in
 
the
 
country
 
of
 
receipt
 
or
 
is
 
at
 
a
 
time
 
outside
 
normal
 
business
 
hours,
 
such communication
 
shall be effective on
the next succeeding working day.
(b)
 
Any communication or
 
document to be made
 
or delivered to an
 
Agent will be effective
only
 
when
 
actually
 
received
 
by
 
such
 
Agent
 
and
 
then
 
only
 
if
 
it
 
is expressly marked
for
 
the
 
attention
 
of
 
the
 
department
 
or
 
officer
 
identified
 
in Clause
 
31.2 (
Addresses
) (or
any substitute department or officer as the relevant
 
Agent
 
shall specify for this purpose).
(c)
 
All notices from or to an Obligor shall
 
be sent through the Facility
 
Agent.
31.4
Notification
 
of address and fax number
Promptly upon changing its address
 
or fax number,
 
each Agent shall notify the other Parties.
31.5
Electronic communication
 
(a)
 
Any communication to
 
be made between
 
any
 
two Parties
 
under or in
 
connection
with the Finance
 
Documents may
 
be made by
 
electronic mail
 
or other
 
electronic
 
means to
the extent that those
 
two Parties agree
 
that, unless and
 
until notified
 
to
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the contrary, this is to be an accepted form of communication and if those two Parties:
(i)
 
notify
 
each
 
other
 
in
 
writing
 
of
 
their
 
electronic
 
mail
 
address
 
and/or
 
any
 
other
 
information
 
required
 
to
 
enable
 
the
 
sending
 
and
 
receipt
 
of
 
information by
that means; and
(ii)
 
notify
 
each
 
other
 
of
 
any
 
change
 
to
 
their
 
address
 
or
 
any
 
other
 
such
information supplied
 
by
 
them by
 
not less
 
than five
 
Business Days'
 
notice.
(b)
 
Any
 
electronic
 
communication
 
made
 
between
 
those
 
two
 
Parties
 
will
 
be
 
effective
 
only when
actually received
 
during a Business
 
Day in readable
 
form
 
and in
 
the case
 
of any
 
electronic
communication made by a Party
 
to an Agent only
 
if it is addressed in
 
such a manner
 
as
such Agent shall specify for this purpose.
(c)
 
Any electronic
 
communication which
 
becomes effective,
 
i
n
accordance
 
with
 
paragraph
(b) above, after
 
5.00 p.m.
 
in the
 
place of
 
receipt shall be
 
deemed only
 
to become effective
on the following Business Day.
(d)
 
Any
 
reference
 
in
 
a
 
Finance
 
Document
 
to
 
a
 
communication
 
being
 
sent
 
or received
shall be
 
construed
 
to include
 
that communication
 
being made
 
available
 
in accordance with
this Clause 31.5.
31.6
Communication when an Agent is an Impaired Agent
If an Agent is an Impaired
 
Agent the Parties may, instead of communicating with
 
each
other
 
through
 
that
 
Agent,
 
communicate
 
with
 
each
 
other
 
directly
 
and
 
(while
 
that Agent
 
is
 
an
Impaired
 
Agent)
 
all
 
the
 
provisions
 
of
 
the
 
Finance
 
Documents
 
which
 
require
 
communications
to be made or
 
notices to be
 
given to or by
 
that Agent
 
shall be varied
 
so that
 
communications may
be made and notices
 
given to
 
or by the
 
relevant Parties directly.
 
This
 
provision
 
shall not
 
operate
after a
 
replacement
 
Agent has
 
been appointed.
31.7
English language
(a)
 
Any notice given under or in connection with
 
any Finance Document must be
in English.
(b)
 
All
 
other
 
documents
 
provided
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
Document must be:
(i)
 
in English; or
(ii)
 
if not in English, and if so required by the Facility Agent,
 
accompanied
by a certified English translation.
32.
CALCULATION AND CERTIFICATES
32.1
Accounts
In
 
any litigation
 
or
 
arbitration
 
proceedings
 
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
a
 
Finance
 
Document,
the entries made
 
in the
 
accounts
 
maintained by a
 
Finance Party are
prima
facie
evidence
 
of the
matters to which
 
they relate.
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32.2
Certificates and Determinations
Except where
 
otherwise
 
indicated, any
 
certification or
 
determination
 
by a
 
Finance Party
of a rate or amount under any Finance Document
 
is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
32.3
Day count convention
Any interest, commission or fee accruing under a Finance
 
Document will accrue from
day
 
to
 
day
 
and
 
is
 
calculated
 
on
 
the
 
basis of the
 
actual
 
number
 
of days
 
elapsed
 
and
 
a year of
360 days
 
or,
 
in any
 
case where
 
the practice
 
in the
 
Relevant Market
 
differs, in
 
accordance
 
with
that market practice.
33.
PART
 
IAL INVALIDITY
If, at any time, any provision
 
of the Finance Documents is
 
or becomes illegal, invalid
or unenforceable in any respect
 
under any law of any
 
jurisdiction, neither the
 
legality, validity
 
or
enforceability
 
of
 
the
 
remaining
 
provisions
 
nor
 
th
e
legality,
 
validity
 
or
 
enforceability of such
provision under the law of any
 
other jurisdiction will in any way
 
be affected or impaired.
34.
REMEDIES AND WAIVERS
 
No
 
failure to
 
exercise, nor any
 
delay in
 
exercising, on the
 
part
 
of any Finance Party,
any right or remedy under the Finance Documents
 
shall operate as a
 
waiver, nor shall any
 
single
or
 
partial
 
exercise
 
of
 
any
 
right
 
or
 
remedy
 
prevent
 
any
 
further
 
or
 
other
 
exercise
 
or the
 
exercise
of any other
 
right or remedy.
 
The rights and
 
remedies provided
 
in this Agreement
 
are cumulative
and not exclusive of any rights or
 
remedies provided
 
by law.
35.
AMENDMENTS AND WAIVERS
35.1
Required consents
(a)
 
Subject to Clause
 
35.2 (
Exceptions
) any term
 
of the
 
Finance Documents
 
may be
 
amended
or
 
waived
 
only
 
with
 
the
 
consent
 
of
 
the
 
Majority
 
Lenders
 
and
 
ABB
 
and
 
any
 
such
amendment or waiver
 
will be binding on all Parties.
(b)
 
The
 
Facility
 
Agent
 
may
 
effect
 
(and
 
is
 
hereby
 
so
 
authorised
 
by
 
each
 
Finance Party),
on behalf of any Finance Party, any amendment or waiver
 
permitted by this Clause.
35.2
All Lender matters
Subject to Clause 35.
7
(
Changes to the reference rates
) an
 
amendment or waiver of
any term of any Finance Document
 
that has the effect of changing or which
 
relates to:
 
(a)
 
the definition of "
Majority Lenders
" in Clause 1.1 (
Definitions
);
 
(b)
 
an
 
extension
 
to
 
the
 
date
 
of
 
payment
 
of
 
any
 
amount
 
under
 
the
 
Finance
Documents;
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(c)
 
a reduction in the Margin or the amount of any payment of principal,
 
interest,
fees or commission payable;
(d)
 
an
 
increase
 
in
 
any
 
Commitment
 
or
 
Swingline
 
Commitment
 
other
 
than
 
an
increase made in accordance with Clause
 
2.2 (
Increase of Commitments
);
(e)
 
any change to the Obligors other than
 
in accordance with Clause 25 (
Changes
to the Obligors
);
(f)
 
any provision which expressly requires the consent
 
of all the Lenders;
(g)
 
Clause
 
2.4
 
(
Finance
 
Parties'
 
rights
 
and
 
obligations
),
 
Clause
 
4.
2
(
Further
conditions
precedent
), Clause 5.1 (
delivery of a Utilisation
 
Request
), Clause 8.1 (
Lender
 
Illegality
),
Clause
 
8.3
 
(
Mandatory
 
Prepayment
 
on
 
Change
 
of
 
Control
),
 
Clause
 
8.4
 
(
Mandatory
Prepayment
 
on
 
Sanctions
 
Misrepresentation
 
or
 
Anti-
Bribery
 
and
 
Corruption
 
Misrepresentation
), Clause 23 (
Changes
 
to
 
the
Lenders
),
 
Clause 25
 
(
Changes to
 
the
Obligors
),
 
Clause
 
28
 
(
Sharing
 
among
 
the
Lenders
),
 
this
 
Clause
 
35,
 
Clause
 
38
 
(
Governing
 
Law
)
 
or
 
Clause
 
39
 
(
Enforcement
);
 
(h)
 
the
 
nature
 
or
 
scope
 
of
 
the
 
guarantee
 
and
 
indemnity
 
granted
 
under
 
Claus
e
18
(
Guarantee and Indemnity
),
shall not be made without the prior consent of all
 
the Lenders.
35.3
Other exceptions
 
An amendment or waiver which
 
relates to the rights
 
or obligations of any Agent
 
or any
Mandated Lead Arranger
 
(each in their capacity
 
as such) may not be effected
 
without the
consent of such Agent, such Mandated Lead Arranger.
35.4
Restricted Lenders
 
Claus
e
8.
4
(
Mandatory
 
Prepayment
 
on
 
Sanctions
 
Misrepresentation
)
and/or
 
Clause
19.14
 
(
Sanctions
)
 
and/or
 
Clause
 
21.9
 
(
Economic
 
Sanctions
)
 
(together,
 
the
 
"
Sanctions
Provisions
") shall only apply or,
 
as applicable, be given to
 
the extent that it would not result
 
in
(i)
 
any
 
violation
 
of,
 
conflict
 
with
 
or
 
liability
 
under
 
E
U
Regulation
 
(EC) 2271/96
 
or
 
(ii)
 
a
violation
 
or
 
conflict
 
with
 
section
 
7
 
foreign
 
trade
 
rules
 
(AWV) (
Außenwirtschaftsverordnung
)
(in
 
connection
 
with
 
section
 
4
 
paragraph
 
1
 
a
 
no.
 
3
 
foreign
 
trade
 
law
 
(AWG)
 
(
Außenwirtschaftsgesetz
))
 
or
 
a
 
similar
 
anti-boycott
 
statute.
 
In
 
connection
 
with
 
any
amendment, waiver,
 
determination or direction
 
relating to
 
any part of
 
a
 
Sanctions Provision
 
of
which a Lender does not
 
have the benefit
 
(and where
 
the Lender has notified the Facility Agent
to this effect), the Commitments of that Lender
 
will
 
be excluded for
 
the purpose of
 
determining
whether
 
the
 
consent of the
 
Majority Lenders has been obtained or whether the determination or
direction by the Majority Lenders has been made.
35.5
Disenfranchisement of Defaulting Lenders
 
(a)
 
For
 
so long as a
 
Defaulting Lender
 
has any Commitment,
 
in
 
ascertaining the
Majority Lenders
 
or whether
 
any given
 
percentage (including,
 
for the
 
avoidance
 
of doubt,
unanimity) of the Total Commitments has been obtained to approve
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any request for a consent, waiver, amendment or other vote under
 
the Finance
Documents:
 
(i)
 
that Defaulting Lender's Commitments will be reduced
 
by the amount
of its Available Commitments; and
 
(ii)
 
that Defaulting
 
Lender's Commitments
 
will be
 
ignored if
 
that Defaulting
Lender fails to respond
 
to a
 
request for a waiver
 
or amendment within the
 
time
period specified by ABB
 
and (unless it is an Impaired
 
Agent) the Facility Agent.
 
(b)
 
For
 
the
 
purposes of this
 
Claus
e
35.5, the
 
Facility Agent may assume
 
that the
following Lenders are Defaulting Lenders:
 
(i)
 
any Lender which has notified the Facility Agent that it
 
has become a
Defaulting Lender (and each Lender
 
shall notify the Facility
 
Agent
 
and ABB
promptly after becoming a Defaulting Lender);
(ii)
 
any
 
Lender
 
in
 
relation
 
to
 
which
 
it
 
is
 
aware
 
that
 
any
 
of
 
the
 
events
 
or
circumstances
 
referred
 
to
 
in
 
paragraphs
 
(a),
 
(b)
 
or
 
(c)
 
of
 
the
 
definition
 
of
"Defaulting Lender" has occurred,
unless it
 
has received
 
notice to
 
the contrary
 
from the
 
Lender concerned
 
(together with any
supporting evidence reasonably requested by the Facility
 
Agent)
 
or the Facility Agent is
otherwise aware that the Lender
 
has
 
ceased to be a
 
Defaulting Lender.
35.6
Replacement of a Defaulting Lender
 
(a)
 
ABB may, at any time a Lender
 
has become and continues to be a
 
Defaulting
Lender,
 
by giving
 
5
 
Business Days'
 
prior written notice to
 
the Facility Agent and such
Lender:
(i)
 
replace such Lender and any Revolving
 
Facility Affiliate or Swingline Affiliate
 
of
 
that
 
Lender
 
by
 
requiring
 
such
 
Lender
 
and
 
any
 
such
 
Revolving Facility
Affiliate
 
or
 
Swingline Affiliate
 
to (and
 
to the
 
extent permitted
 
by
 
law
 
that
 
Lender
 
or
 
Revolving
 
Facility
 
Affiliate
 
or Swingline
 
Affiliate shall) transfer
pursuant
 
to
 
Clause
 
23
 
(
Changes
 
to
 
the
Lenders
)
 
all
 
(and,
 
save
 
to
 
the
 
extent
provided for
 
in this
 
Clause, not
 
part
 
only) of
 
its rights
 
and obligations
 
under this
Agreement (including
 
in respect of any Separate
 
Advances); or
(ii)
 
require such Lender and/or
 
its Revolving Facility
 
Affiliate or Swingline
 
Affiliate
to (and
 
to the
 
extent
 
permitted by
 
law such
 
Lender or
 
Revolving
 
Facility
 
Affiliate
 
of
 
Swingline
 
Affiliate
 
shall)
 
transfer
 
pursuant
 
to Clause
 
23 (
Changes to the
Lenders
) all (and, save to the extent provided for
 
in
 
this
 
Clause,
 
not
 
part
 
only)
of
 
the
 
undrawn Commitment
 
and/or Swingline
 
Commitment
 
of
 
such
 
Lender
and/or
 
its
 
Revolving
 
Facility
 
Affiliate or Swingline Affiliate,
to
 
a
 
Lender
 
or
 
other
 
bank
 
(a
 
"
Replacement
 
Lender
")
 
selected
 
by
 
ABB,
 
and which
confirms its willingness
 
to assume and does
 
assume all the obligations
 
or
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all
 
the
 
relevant
 
obligations
 
of
 
the
 
transferring
 
Lender,
 
Revolving
 
Facility Affiliate
o
r
Swingline
 
Affiliate
 
(including
 
the
 
assumption
 
of
 
participations
 
or
 
unfunded
participations (as the case may be)
 
of the transferor on the
 
same basis as the
 
transferor)
for
 
a
 
purchase
 
price
 
in
 
cash
 
payable
 
at
 
the
 
time
 
of
 
transfer equal to the outstanding
principal
 
amount
 
of such
 
Lender's
 
or Revolving
 
Facility
 
Affiliate's or
 
Swingline Affiliate's
participation in the
 
outstanding Advances and
 
all
 
accrued
 
interest
 
(to
 
the
 
extent
 
that
the
 
Facility
 
Agent
 
has
 
not
 
given
 
a notification under Clause 23.10 (
Pro rata interest
settlement
), Break Costs and other amounts payable
 
in relation thereto
 
under the Finance
Documents.
 
Where a
 
Lender
 
to be
 
replaced
 
pursuant to
 
this paragraph
 
is a
 
Swingline
Lender
 
that
 
is
 
the
 
Swingline
 
Affiliate
 
of
 
another
 
Lender,
 
the
 
rights
 
and
 
obligations
required to be transferred pursuant to
 
this Clause
 
by that
 
other Lender in its
 
capacity as
the Revolving Facility
 
Affiliate
 
of
 
that
 
Swingline
 
Lender
 
may,
 
at
 
the
 
option
 
of
 
ABB,
be limited
 
to
 
those
 
necessary for
 
the
 
Commitments of
 
the
 
replacement
 
Lender
 
(or
 
its
 
Affiliate)
 
to
 
be
 
at
 
least
 
equal
 
to
 
each
 
of
 
the
 
Swingline Commitments
 
to
 
be
transferred
 
to
 
such
 
replacement
 
Lender
 
pursuant
 
to
 
this Clause.
 
(b)
 
Any transfer of rights
 
and obligations of a Lender pursuant
 
to this Clause shall
be subject to the following conditions:
(i)
 
ABB shall have no right to replace an
 
Agent;
 
(ii)
 
no Agent nor the Defaulting Lender nor any other Finance Party
 
shall
have any obligation
 
to find a Replacement
 
Lender;
 
(iii)
 
the transfer must
 
take place
 
no later
 
than 20
 
days after the
 
notice referred
to in paragraph (a) above; and
 
(iv)
 
in no event shall the Defaulting Lender be required to
 
pay or surrender
to
 
the Replacement
 
Lender any
 
of the fees received
 
by the
 
Defaulting
 
Lender
pursuant to the Finance Documents.
35.7
Changes to the reference rates
 
(a)
 
Subjec
t
to
 
Claus
e
35.
3
(
Other
 
exceptions
),
 
if
 
a
 
Published
 
Rate
 
Replacement
Event has occurred in relation
 
to any Published Rate for a
 
currency
 
which
 
can be
selected for an Advance,
 
any amendment or waiver which
 
relates to:
(i)
 
providing for
 
the use
 
of a Replacement
 
Reference
 
Rate in
 
relation to
 
that
currency in place of that Published
 
Rate; and
(ii)
 
(A)
 
aligning
 
any provision
 
of any Finance
 
Document to the
 
use of
that Replacement Reference Rate;
 
(B)
 
enabling
 
that
 
Replacement
 
Reference
 
Rate
 
to
 
be
 
used
 
for
 
the
calculation
 
of
 
interest
 
under
 
this
 
Agreement
 
(including,
 
without
limitation,
 
any
 
consequential
 
changes
 
required
 
to
 
enable
 
that
Replacement
 
Reference
 
Rate
 
to
 
be
 
used
 
for
 
the
 
purposes
 
of
 
this
Agreement);
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(C)
 
implementing
 
market
 
conventions
 
applicable
 
to
 
that
Replacement Reference Rate;
 
(D)
 
providing
 
for
 
appropriate
 
fallback
 
(and
 
market
 
disruption)
provisions for that Replacement Reference Rate; or
 
(E)
 
adjusting
 
the
 
pricing
 
to
 
reduce
 
or
 
eliminate,
 
to
 
the
 
extent
reasonably practicable, any transfer
 
of economic value
 
from one
 
Party to
another as
 
a result of
 
the application of
 
that Replacement
 
Reference Rate
(and
 
if
 
any adjustment
 
or method
 
for calculating any
 
adjustment
 
has
 
been
 
formally
 
designated,
 
nominated
 
or
 
recommended
 
by the
 
Relevant
Nominating Body,
 
the
 
adjustment
 
shall be
 
determined on the
 
basis
 
of that
designation, nomination
 
or recommendation),
may be made with
 
the consent of the Facility Agent
 
(acting on the instructions
 
of the
Majority Lenders) and ABB.
(b)
 
If
 
any
 
Lender
 
fails
 
to
 
respond
 
to
 
a
 
request
 
for
 
an
 
amendment
 
or
 
waiver
 
described in
paragraph
 
(a)
 
above
 
withi
n
te
n
(10)
 
Business
 
Days
 
(or
 
such
 
longer
 
time period in
relation to
 
any request
 
which ABB
 
and the
 
Facility Agent
 
may agree)
 
of that
 
request being
made:
(i)
 
its Commitments
 
shall not
 
be included
 
for the
 
purpose of
 
calculating
 
the Total
Commitments
 
under
 
the
 
Facility
 
when
 
ascertaining
 
whether
 
any
 
relevant
percentage of
 
Total Commitments has
 
been obtained
 
to approve
 
that request; and
(ii)
 
its status as
 
a Lender shall
 
be disregarded for
 
the purpose
 
of ascertaining
 
whether
the
 
agreement
 
of
 
any
 
specified
 
group
 
o
f
Lenders
 
has
 
been obtained
 
to
approve that request.
36.
BAIL-IN
36.1
Contractual recognition of bail-in
 
Notwithstanding
 
any
 
other
 
term
 
of
 
any
 
Finance
 
Document
 
or
 
any
 
other
 
agreement,
arrangement
 
or
 
understanding
 
between
 
the
 
Parties,
 
each
 
Party
 
acknowledges
 
and accepts
that
 
any
 
liability
 
of
 
any
 
Party
 
to
 
any
 
other
 
Party
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
Documents
 
may
 
be
 
subject
 
to
 
Bail-In
 
Action
 
by
 
the
 
relevant
 
Resolution Authority and
acknowledges and accepts to be bound
 
by the effect of:
(a)
 
any
 
Bail-In
 
Action
 
in
 
relation
 
to
 
any
 
such
 
liability,
 
including
 
(without
limitation):
 
(i)
 
a
 
reduction,
 
in
 
full
 
or
 
in
 
part, in
 
the
 
principal amount,
 
or
 
outstanding
amount due (including
 
any
 
accrued but unpaid
 
interest) in respect
 
of any
 
such
liability;
 
(ii)
 
a
 
conversion
 
of
 
all,
 
or
 
part
 
of,
 
any
 
such
 
liability
 
into
 
shares
 
or
 
other
instruments
 
of ownership that may be issued
 
to, or conferred on, it;
 
and
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(iii)
 
a cancellation of any such liability;
 
and
 
(b)
 
a variation of
 
any term of
 
any Finance
 
Document to
 
the extent necessary
 
to give
effect to any Bail-In Action in relation to any such liability.
36.2
Bail-In definitions
In this Clause
 
36:
"
Article
 
55
 
BRRD
"
 
means
 
Article
 
55
 
of
 
Directive
 
2014/59/EU
 
establishing
 
a
framework for the recovery and resolution of credit
 
institutions and investment firms.
"
Bail-In Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In Legislation
" means:
 
(a)
 
in relation to
 
an EEA Member
 
Country
 
which has
 
implemented, or
 
which at any
time
 
implements,
 
Article
 
55
 
BRRD,
 
the
 
relevant
 
implementing
 
law
 
or
 
regulation
as
 
described
 
in
 
the
 
EU
 
Bail-In Legislation
 
Schedule
 
from
 
time
 
to
 
time;
(b)
 
in relation to the United Kingdom, the UK
 
Bail-In Legislation; and
 
(c)
 
in relation
 
to any state other
 
than such an
 
EEA Member Country
 
and the United
Kingdom, any analogous
 
law or regulation fro
m
time to time which
 
requires
 
contractual
recognition
 
of
 
any
 
Write-down
 
and
 
Conversion
 
Powers
 
contained
 
in
 
that
 
law
 
or
regulation.
"
EEA Member
 
Country
" means
 
any member
 
state
 
of the European Union,
 
Iceland,
Liechtenstein and Norway.
"
EU
 
Bail-In
 
Legislation
 
Schedule
"
 
means
 
the
 
document
 
described
 
as
 
such
 
and
 
published
by the Loan
 
Market Association (or any
 
successor person) from time
 
to time.
"
Resolution Authority
" means
 
any
 
body which has authority to exercise any Write-
 
down and
Conversion Powers.
"
UK Bail-In Legislation
" means Part I of the United Kingdom Banking Act 2009
 
and any other
law or
 
regulation applicable
 
in the
 
United Kingdom
 
relating to
 
the resolution
 
of unsound or failing
banks,
 
investment
 
firms
 
or
 
other
 
financial
 
institutions
 
or
 
their affiliates
 
(otherwise
 
than
 
through
 
liquidation,
 
administration
 
or
 
other
 
insolvency
 
proceedings).
"
Write-down and Conversion Powers
" means:
 
(a)
 
in
 
relation to
 
any Bail-In
 
Legislation described
 
in
 
the EU
 
Bail-In Legislation
Schedule
 
from
 
tim
e
to
 
time,
 
the
 
powers
 
described
 
as
 
such
 
in
 
relation
 
to
 
that Bail-In
Legislation in the EU Bail-In Legislation
 
Schedule;
 
(b)
 
in relation
 
to the UK
 
Bail-In Legislation, any powers
 
under that
 
UK Bail-In
 
Legislation
to cancel, transfer or dilute shares issued by a person that is a bank or
 
investment firm
 
or
other financial
 
institution or
 
affiliate
 
of a
 
bank, investment
10250237317-v15
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firm
 
or
 
other
 
financial
 
institution,
 
to
 
cancel,
 
reduce,
 
modify
 
or
 
change
 
the
 
form
 
of
 
a
liability of
 
such a person
 
or any
 
contract or
 
instrument unde
r
which that liability
 
arises,
to
 
convert all
 
or
 
part of
 
that liability
 
into shares,
 
securities or obligations of that person
or any other person, to provide
 
that any such contract or
 
instrument
 
is
 
to
 
have
 
effect
 
as
if
 
a
 
right
 
had
 
been
 
exercised
 
under
 
it
 
o
r
to suspend
 
any
 
obligation
 
in
 
respect
 
of
 
that
liability
 
or
 
any
 
of
 
the
 
powers
 
under
 
that UK
 
Bail-In Legislation that
 
are related
 
to or
ancillary to
 
any of
 
those powers;
and
(c)
 
in relation to any other applicable Bail-In Legislation:
(i)
 
any
 
powers
 
under
 
that
 
Bail-In
 
Legislation
 
to
 
cancel,
 
transfer
 
or
 
dilute shares
issued
 
by
 
a
 
person
 
that
 
is
 
a
 
bank
 
or
 
investment
 
firm
 
or
 
other financial
institution
 
or
 
affiliate
 
of
 
a
 
bank,
 
investment
 
firm
 
or
 
other
 
financial institution,
to cancel,
 
reduce, modify or
 
change the form
 
of a liability
 
of such a
 
person or any
contract or
 
instrument under
 
which
 
that
 
liability arises,
 
to
 
convert
 
all
 
or
 
part of
 
that
liability
 
into
 
shares,
 
securities
 
or
 
obligations of
 
that person
 
or
 
any other
 
person,
to
 
provide that
 
any
 
such
 
contract
 
or
 
instrumen
t
is
 
to
 
have
 
effect
 
as
 
if
 
a
 
right
had
 
been
 
exercised
 
under it
 
or to
 
suspend
 
any obligation
 
in respect
 
of that
 
liability
or any of the powers under
 
that Bail-In Legislation that
 
are related to
 
or ancillary
to any of those powers; and
(ii)
 
any similar or analogous
 
powers under that Bail-In Legislation.
37.
COUNTERPARTS
Each Finance Document may be
 
executed in any number of counterparts, and
 
this has the
 
same
effect
 
as if
 
the
 
signatures on the
 
counterparts were
 
on a
 
single copy of
 
the
 
Finance Document.
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SECTION 11
GOVERNING LAW AND ENFORCEMENT
38.
GOVERNING LAW
This
 
Agreement
 
and
 
any
 
non-contractual obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
with it are governed by English law.
 
39.
ENFORCEMENT
39.1
Jurisdiction
(a)
 
The courts
 
of England sitting in
 
London
 
have exclusive
 
jurisdiction t
o
decide
 
any dispute
arising
 
out of
 
or in
 
connection with
 
this Agreement
 
(including a dispute relating to the
existence, validity or
 
termination of this
 
Agreement or any
 
non-contractual
 
obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
this Agreement)
 
(a "
Dispute
").
(b)
 
The Parties
 
agree that
 
the courts
 
of Englan
d
sitting in
 
Londo
n
are the
 
most
 
appropriate
and
 
convenient
 
courts
 
to
 
settle
 
Disputes
 
and
 
accordingly
 
no
 
Party
 
will
 
argue
 
to
 
the
contrary.
(c)
 
This
 
Claus
e
3
9
is for
 
the
 
benefit
 
of the Finance
 
Parties
 
only.
 
As
a
result,
 
no Finance
Party shall
 
be prevented
 
from taking proceedings relating
 
to a Dispute ("
Proceedings
")
in any other courts with jurisdiction.
(d)
 
If ABB Finance
 
B.V.
 
is represented
 
by an attorney
 
or attorneys
 
in connection with
 
the
signing
 
and/or
 
executio
n
and/or
 
delivery
 
of
 
this
 
Agreement
 
or
 
any agreement
 
or
document
 
referred
 
to
 
herein
 
or
 
made
 
pursuant
 
hereto
 
and the relevant
 
power or
 
powers
of attorney is or are expressed to be
 
governed by the laws
 
of
 
a
 
particular
 
jurisdiction,
it
 
is
 
hereby
 
expressly
 
acknowledged
 
and
 
accepted by the
 
other parties hereto
 
that such
laws shall
 
govern
 
the
 
existence and
 
extent
 
of
 
such
 
attorney's
 
or
 
attorneys'
 
authority
and
 
the
 
effects
 
of
 
the
 
exercise thereof.
(e)
 
ABB and
 
each
 
Borrower
 
incorporated
 
in
 
a
 
jurisdiction other
 
than
 
England
 
and
 
Wales
agree
 
that
 
the
 
documents
 
which
 
start
 
any
 
Proceedings
 
in
 
England
 
and any
 
other
documents required to be
 
served in relation
 
to those
 
Proceedings
 
may be served
 
on ABB
Limited,
 
at
 
Daresbury
 
Park,
 
Daresbury,
Wa
rrington
 
WA4
 
4BT,
 
Cheshire,
 
United
Kingdom or, if different, its
 
registered office, with a copy
 
to ABB.
 
If the appointment of
the
 
person
 
mentioned
 
in
 
this
 
paragraph
 
(e)
 
ceases to
 
be
 
effective,
 
ABB
 
and
 
each
Borrower
 
shall
 
immediately
 
appoint
 
another person
 
in
 
England to
 
accept service
 
of
process on
 
its behalf
 
in England.
 
If ABB
 
or any Borrower fails to do so (and such failure
continues for a period of not less than fourteen days), the Facility
 
Agent shall be entitled
to appoint such a person by notice to ABB
 
or the relevant
 
Borrower (as
 
the case
 
may be).
 
Nothing contained herein
 
shall
 
restrict
 
the
 
right
 
to
 
serve
 
process in
 
any
 
other
 
manner
allowed by law.
THIS
 
AGREEMEN
T
has
 
been
 
entered
 
into
 
on
 
the
 
date
 
stated
 
at
 
the
 
beginning
 
of
 
this
Agreement.
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SCHEDULE 1
PART
 
I
THE ORIGINAL LENDERS
Name
 
Commitment ($)
Citibank, N.A., London Branch
 
105,694,444.50
Bank of America
 
Europe Designated Activity Company
 
105,694,444.50
Barclays Bank PLC
 
105,694,444.50
BNP Paribas (Suisse) SA
 
105,694,444.50
CA Indosuez (Switzerland)
 
SA
 
105,694,444.50
Credit Suisse (Switzerland) Ltd.
 
105,694,444.50
Deutsche Bank Luxembourg S.A.
 
105,694,444.50
Goldman Sachs Bank USA
 
105,694,444.50
HSBC Bank plc
 
105,694,444.50
ING Bank N.V.,
 
Amsterdam, Lancy/Geneva Branch
 
105,694,444.50
JPMorgan Chase Bank, N.A., London Branch
 
105,694,444.50
Nordea Bank Abp, filial i Sverige
 
105,694,444.50
Banco Santander, S.A.
 
105,694,444.50
Standard Chartered Bank
 
105,694,444.50
Skandinaviska Enskilda Banken AB (publ)
 
105,694,444.50
Société Générale S.A. Frankfurt
 
Branch
 
105,694,444.50
UBS Switzerland AG
 
105,694,444.00
UniCredit Bank AG
 
105,694,444.00
China
 
Construction
 
Bank
 
Corporation,
 
Beijing,
 
Swiss
 
Branch
Zurich
97,500,000.00
Total
...............................................................................................
2,000,000,000
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PART II
THE DOLLAR SWINGLINE
 
LENDERS
Dollar
 
Swingline
Commitment ($)
Citibank, N.A.
 
39,633,333.39
Bank of America N.A.
 
39,633,333.33
Barclays Bank PLC
 
39,633,333.33
BNP Paribas (Suisse) SA
 
39,633,333.33
CA Indosuez (Switzerland)
 
SA
 
39,633,333.33
Credit Suisse AG, Cayman Islands Branch
 
39,633,333.33
Deutsche Bank AG New York Branch
 
39,633,333.33
Goldman Sachs Bank USA
 
39,633,333.33
HSBC Bank plc
 
39,633,333.33
ING Bank N.V.,
 
Amsterdam, Lancy/Geneva
 
Branch
 
39,633,333.33
JPMorgan Chase Bank, N.A.
 
39,633,333.33
Nordea Bank Abp, filial i Sverige
 
39,633,333.33
Banco Santander, S.A.
 
39,633,333.33
Standard Chartered Bank
 
39,633,333.33
Skandinaviska Enskilda Banken AB (publ)
 
39,633,333.33
Société Générale
 
39,633,333.33
UBS AG, Stamford Branch
 
39,633,333.33
UniCredit Bank AG
 
39,633,333.33
China
 
Construction
 
Bank
 
Corporation,
 
Beijing,
 
Swiss
 
Branch
 
Zurich
36,600,000.00
Total
..............................................................................................
750,000,000
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Name
 
 
 
 
 
PART III
THE EURO SWINGLINE
 
LENDERS
Euro Swingline
Commitment ($)
Citibank, N.A., London Branch
 
39,633,333.39
Bank of America
 
Europe Designated Activity Company
 
39,633,333.33
Barclays Bank PLC
 
39,633,333.33
BNP Paribas (Suisse) SA
 
39,633,333.33
CA Indosuez (Switzerland)
 
SA
 
39,633,333.33
Credit Suisse (Switzerland) Ltd.
 
39,633,333.33
Deutsche Bank Luxembourg S.A.
 
39,633,333.33
Goldman Sachs Bank USA
 
39,633,333.33
HSBC Bank plc
 
39,633,333.33
ING Bank N.V.,
 
Amsterdam, Lancy/Geneva Branch
 
39,633,333.33
JPMorgan Chase Bank, N.A., London Branch
 
39,633,333.33
Nordea Bank Abp, filial i Sverige
 
39,633,333.33
Banco Santander, S.A.
 
39,633,333.33
Standard Chartered Bank
 
39,633,333.33
Skandinaviska Enskilda Banken AB (publ)
 
39,633,333.33
Société Générale S.A. Frankfurt
 
Branch
 
39,633,333.33
UBS Switzerland AG
 
39,633,333.33
UniCredit Bank AG
 
39,633,333.33
China
 
Construction
 
Bank
 
Corporation,
 
Beijing,
 
Swiss
 
Branch
 
Zurich
36,600,000.00
Total
..............................................................................................
750,000,000
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Name
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
PART IV
THE ORIGINAL OBLIGORS
Jurisdiction
 
of
incorporation
ABB Finance B.V.
 
George Hintzenweg 81
 
Netherlands
3068 AX Rotterdam
The Netherlands
Attention:
 
Business Administration
E-mail:
 
NL-
coe.corporatetreasury.euc@abb.com
(with CC to grouptreasury@ch.abb.com)
Copy:
 
Legal Department
Fax:
 
+ 41 43 317 7992
ABB Treasury Center
(USA), Inc.
U.S.A.
Attention:
 
Treasurer
E-mail:
US-
amccorporatetreasury@abb.com
 
(with
CC
to grouptreasury@ch.abb.com)
Copy:
 
Legal Department
Fax:
 
+ 41 43 317 7992
Jurisdiction
 
of
incorporation
ABB Ltd
 
Affolternstrasse 44
 
Switzerland
CH-8050 Zurich
Switzerland
Attention:
 
Group Treasurer
Email:
grouptreasury@ch
.abb.com
Copy:
 
Legal Department
Fax:
 
+41 43 317 7992
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Name of Original
Borrower
 
Address
305 Gregson Drive Cary, North Carolina
27511
Delaware,
 
United
States of America
Name of Guarantor
 
Address
 
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT
1
1.
Corporate Documents
(a)
 
A copy of the constitutional documents of
 
each Obligor (being, in the case of
ABB
 
Finance
 
B.V.
 
,
 
a
 
copy
 
of
 
the
 
articles
 
of
 
association
 
(
statuten
)
 
and
 
deed
 
of
incorporation
 
(
oprichtingsakte
),
 
as
 
well
 
as
 
an
 
extract
 
(
uittreksel
)
 
from
 
the
 
Dutch
Commercial Register (
Handelsregister
)).
(b)
 
A copy of a resolution of the board of directors
 
of each Obligor (if applicable) or,
 
in
 
the
case
 
of
 
ABB
 
Finance
 
B.V.,
 
a
 
copy
 
of
 
a
 
resolution
 
of
 
the
 
board
 
of
 
managing directors
(
directie
) or,
 
in the case
 
of ABB, a
 
copy of an
 
excerpt of the minutes
 
of,
 
or
 
a
 
circular
resolution of,
 
a meeting
 
of
 
the
 
board
 
of
 
directors of ABB:
(i)
 
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the Finance
Documents
 
to
 
which
 
it
 
is
 
a
 
party
 
and
 
resolving
 
that
 
it
 
execute
 
the
 
Finance
Documents to which it is a party;
(ii)
 
(other
 
than
 
in
 
relation
 
to
 
ABB)
 
authorising
 
a
 
specified
 
person
 
or
 
persons
 
to
execute the Finance Documents to
 
which
 
it is a
 
party on its
 
behalf;
 
and
(iii)
 
(other than in relation to ABB) authorising
 
a specified person or persons,
 
on
 
its
 
behalf,
 
to
 
sign
 
and/or
 
despatch
 
all
 
documents
 
and
 
notices
 
(including,
 
if
relevant,
 
any
 
Utilisation
 
Request)
 
to
 
be
 
signed
 
and/or despatched
 
by it under
or in connection with the Finance Documents
 
to which it is a party.
(c)
 
A specimen of
 
the signature
 
of each person
 
authorised by
 
the resolution
 
referred
to in paragraph (b) above.
(d)
A
certificate of each
 
Obligor (signed without
 
personal liability by an
 
authorised
signatory
 
of
 
each
 
Obligor)
 
confirming
 
that
 
borrowing
 
or
 
guaranteeing,
 
as
 
appropriate,
 
the
 
Total
 
Commitments
 
would
 
not
 
cause
 
any
 
borrowing,
 
guaranteeing or similar
limit binding
 
on that relevant Obligor
 
to be exceeded.
(e)
 
A copy of a good
 
standing certificate (including
 
verification of tax status)
 
with respect to
ABB Treasury Center (USA), Inc., issued as of a recent date by the Secretary
 
of
 
State
 
or
 
other
 
appropriate
 
official
 
of
 
its
 
jurisdiction
 
of
 
incorporation.
(f)
 
A
 
certificate
 
of
 
an
 
authorised
 
signatory
 
of
 
the
 
relevant
 
Obligor,
 
certifying
 
without
personal
 
liability
 
that
 
each
 
copy
 
document
 
relating
 
to
 
it
 
specified
 
in
1
It is acknowledged and
 
agreed that the
 
Facility Agent has
 
confirmed to ABB
 
on 16 December 2019
 
that the
Facility Agent has received
 
all such documents in
 
form and substance
 
satisfactory to it.
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paragraph 1(a) - (d)
 
of this Schedule 2 is correct, complete
 
and in full force
 
and effect as
at a date
 
no earlier than the date of
 
this Agreement.
2.
Legal opinions
(a)
 
A legal opinion of Clifford Chance LLP, legal advisers to the Mandated Lead Arrangers
and the Agents
 
in England,
 
substantially in
 
the form distributed to the Original Lenders
prior to signing this Agreement.
(b)
 
A
 
legal
 
opinion
 
of
 
Clifford
 
Chance
 
LL
P,
Amsterdam, legal
 
advisers
 
to
 
the
 
Mandated
 
Lead
 
Arranger
 
and
 
the
 
Agents
 
in
 
the
 
Netherlands
 
in
 
the
 
form approved by
 
the
Facility Agent.
(c)
 
A legal opinion of Freshfields Bruckhaus
 
Deringer US LL
P,
United States legal advisers
to
 
ABB
 
Treasury
 
Center
 
(USA),
 
Inc.
 
in
 
the
 
form
 
approved
 
by
 
the
 
Facility Agent.
(d)
 
A legal
 
opinion of
 
Niederer Kraft
 
Frey Ltd,
 
legal advisers
 
to the
 
Mandated Lead
 
Arrangers
and the Agents in Switzerland
 
in the form approved
 
by the Facility
 
Agent.
3.
Other documents and evidence
 
(a)
 
Evidence
 
that
 
the
 
process
 
agent
 
referred
 
to
 
in
 
paragrap
h
(e
)
of
 
Claus
e
39.1
(
Jurisdiction
) has accepted its appointment.
 
(b)
 
Evidence that the Existing Credit Facility
 
has been repaid
 
or cancelled in
 
full.
(c)
 
The Original Financial Statements of each Obligor.
 
(d)
 
Evidence
 
that
 
the
 
fees,
 
costs
 
and
 
expenses
 
then
 
due
 
from
 
ABB
 
pursuant
 
to
Clause 12 (
Fees
) and Clause 17 (
Costs and
 
Expenses
) have been paid or
 
will be
 
paid by
the first Utilisation Date.
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PART
 
II
ADDITIONAL BORROWER CONDITIONS PRECEDENT
1.
 
A Borrower Accession Letter, duly executed by the Additional
 
Borrower and ABB.
2.
 
A copy of the constitutional documents of
 
the Additional Borrower.
3.
 
A
 
copy
 
of
 
a
 
resolution
 
of
 
the
 
board
 
of
 
directors,
 
or
 
other
 
suitable
 
authority,
 
of
 
the
Additional Borrower:
(a)
 
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the
 
Borrower
Accession Letter and the Finance Documents and resolving that it execute
 
the Borrower
Accession Letter;
(b)
 
authorising
 
a
 
specified
 
person
 
or
 
persons to
 
execute the
 
Borrower
 
Accession
Letter on its behalf;
 
and
(c)
 
authorising a specified person or persons, on its behalf,
 
to sign and/or despatch
all other
 
documents and
 
notices (including
 
any Utilisation
 
Request) to
 
be signed
 
and/or
despatched by it under or in connection with
 
the Finance Documents.
4.
 
If applicable
 
or required under
 
applicable law, a
 
copy of the
 
resolution of
 
the board
 
of supervisory
directors of
 
the Additional
 
Borrower approving
 
the resolutions
 
of the
 
board
 
of managing directors
referred to under 3 above.
5.
 
If applicable or required under applicable law, a copy of a resolution of the Additional Borrower
stating that the shareholders resolve and approve the
 
entering into, and the terms and
 
conditions
of, this Agreement.
6.
 
If applicable, a copy
 
of (i) the request
 
for advice from each
 
works council, or central
 
or Europea
n
works
 
council
 
with
 
jurisdiction over
 
the
 
transactions contemplated
 
by this Agreement
 
and
 
(ii)
the
 
positive
 
advice
 
from
 
such
 
works
 
council
 
which
 
contains
 
no condition, which
 
if complied
with, could
 
result in a
 
breach of any of
 
any of the
 
Finance Documents.
7.
 
A specimen of the signature
 
of each person authorised
 
by the resolution
 
referred to
 
in
paragraph 3 above.
8.
 
A
 
certificate
 
of
 
the Additional
 
Borrower (signed by
 
two duly
 
authorised signatories)
confirming
 
that
 
borrowing
 
the
 
Total
 
Commitments
 
would
 
not
 
cause
 
any
 
borrowing
 
limit
binding on it to be exceeded.
9.
 
A
 
copy
 
of
 
a
 
good standing
 
certificate (including
 
verification of
 
tax status)
 
with respect
 
to
 
any
Additional Borrower
 
whose jurisdiction
 
of incorporation
 
is a state
 
of the
 
United States
 
of America
or the
 
District
 
of
 
Columbia,
 
issued
 
as
 
of
 
a
 
recent
 
date
 
by
 
the
 
Secretary
 
of
 
State or
 
other
 
appropriate
official
 
of
 
such
 
Additional
 
Borrower's
 
jurisdiction
 
of
 
incorporation or organisation.
10.
A
certificate
 
of
 
an
 
authorised
 
signatory
 
of
 
the
 
Additional
 
Borrower
 
certifying
 
that each
 
copy
document listed in this Schedule 2 is correct,
 
complete and in full force and effect
 
as at a date no
earlier than the date of the
 
Borrower Accession Letter.
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11.
 
A copy
 
of any
 
other Authorisation
 
or other
 
document, opinion
 
or assurance which
 
the Facility
Agent reasonably considers to be
 
necessary in connection with the
 
entry into and performance of
the
 
transactions
 
contemplated
 
by
 
the
 
Borrower
 
Accession
 
Letter
 
or
 
for
 
the
 
validity
 
and
enforceability
 
of any Finance Document.
12.
 
If available, the latest audited
 
financial statements of the Additional Borrower.
13.
 
A legal opinion of Clifford Chance
 
LLP, legal advisers to the Lenders, Mandated
 
Lead
Arrangers and Facility
 
Agent in England.
14.
 
If
 
the
 
Additional
 
Borrower
 
is
 
incorporated
 
in
 
a
 
jurisdiction
 
other
 
tha
n
England
 
and
Wales, a legal opinion
 
of the
 
legal advisers
 
to the Lenders,
 
Mandated Lead Arrangers
 
and Facility
Agent in the
 
jurisdiction in
 
which the
 
Additional Borrower
 
is incorporated.
15.
 
If the
 
proposed
 
Additional
 
Borrower
 
is
 
incorporated
 
in
 
a
 
jurisdiction
 
other
 
than
 
England
 
and Wales,
evidence that
 
the
 
process agent
 
specified in
 
paragraph (e
)
of Claus
e
39.1 (
Jurisdiction
),
 
if
 
not
a
 
Borrower,
 
has
 
accepted
 
its
 
appointment
 
in
 
relation
 
to
 
the proposed
 
Additional Borrower.
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SCHEDULE 3
UTILISATION REQUEST
2
From:
 
[Name of Borrower]
To:
 
[Agent]
Copied to:
 
[Facility Agent]*
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit
 
Agreement")
1.
 
Words and expressions defined in the Credit Agreement have the same meaning when
used herein
 
unless given a different meaning in this
 
Utilisation Request.
2.
We
 
wish
 
to
 
borrow
 
a(n)
 
[Advance/Dollar
 
Swingline
 
Advance/Euro
 
Swingline
Advance] on the following terms:
Proposed Utilisation Date:
 
[•] (or, if that is not
 
a Business Day, the
next Business Day)
Currency of Advance:
 
[•]
Amount:
 
[•]
Interest Period:
 
[•]
3.
 
We confirm that each condition specified in Clause 4.2 (
Further conditions precedent
)
is satisfied on the date of this Utilisation Request.
4.
 
The proceeds of this Advance
 
should be credited to [account].
5.
 
This Utilisation Request is irrevocable.
Yours
 
faithfully
...................................................................
authorised signatory for
[Name of Borrower]
2
[
WARNING
 
NOTE:
 
Please seek
 
Dutch legal advice
 
(i) until
 
the interpretation of
 
the term
 
"public" (as
referred
 
to in
Article 4.1(1)
 
of the
 
Capital
 
Requirements
 
Regulation
 
(EU/575/2013))
 
has been
 
published
 
by
the competent authority,
 
if the
share of
 
a Lender
 
in any
 
utilisation requested by a
 
Dutch borrower is
 
less
than EUR
 
100,000 (or the foreign
 
currency
equivalent
 
thereof) and
 
(ii) as
 
soon
 
as the
 
interpretation of
 
the
term "public"
 
has been
 
published
 
by the
 
competent authority,
if the Lender is
 
considered to be part
 
of the
public on the basis
 
of such interpretation.
]
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To:
 
[•] as Facility Agent
From:
 
[Existing
 
Lender]
 
(the
 
"
Existing
 
Lender
")
 
and
 
[New
 
Lender]
 
(the
 
"
New
Lender
")
Dated:
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit
 
Agreement")
1.
 
Words and expressions defined in the Credit Agreement have the same meaning when
used herein.
2.
 
We refer to Clause 23.5
 
(
Procedure for transfer
) of the Credit Agreement:
(a)
 
The
 
Existing
 
Lender
 
and
 
the
 
New
 
Lender
 
agree
 
to
 
the
 
Existing
 
Lender
 
and
 
the
 
New
 
Lender
 
transferring
 
by
 
novation
 
all
 
or
 
part
 
of
 
the
 
Existing
 
Lender's
[Commitment/Swingline Commitment],
 
rights and
 
obligations referred
 
to in
 
the
 
Schedule
in accordance with Clause 23.5 (
Procedure for transfer
).
(b)
 
The proposed Transfer Date is [•].
 
(c)
 
The Facility Office and address, fax number and attention
 
details for notices
 
of
the New Lender for the purposes of Clause 31.2 (
Addresses
) are set out in the Schedule.
3.
 
The
 
New
 
Lender
 
confirms,
 
for
 
the
 
benefit
 
of
 
the
 
Facility
 
Agent
 
and
 
without
 
liability
 
to
 
any
Obligor,
 
that
 
it
 
is
 
[a
 
Qualifying
 
Lender
 
falling
 
within
 
paragraph[s]
 
[•]
 
of
 
the definition of
Qualifying Lender]/[not a Qualifying
 
Lender].
4.
 
The New Lender confirms
 
that it is a Qualifying Bank.
5.
 
The
 
New
 
Lender
 
expressly
 
acknowledges
 
the
 
limitations
 
on
 
the
 
Existing
 
Lender's
obligations
 
set
 
out
 
in
 
paragrap
h
(c
)
of
 
Claus
e
23.
4
(
Limitation
 
of
 
responsibility
 
of
Existing
Lenders
).
6.
 
This
 
Transfer
 
Certificate
 
and
 
any
 
non-contractual
 
obligations
 
arising
 
out
 
of
 
or
 
in
connection with it are governed by English
 
law.
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THE SCHEDULE
3
Commitment/Swingline Commitment/rights
 
and obligations to be transferred
[
insert relevant details of Commitment, Dollar Swingline Commitment
 
and/or Euro Swingline
Commitment
]
[
Facility Office address, fax number and attention
 
details for notices and account details for
payments
]
[Existing Lender]
 
[New Lender]
By
:
............................................................
 
By
:
.............................................................
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [•].
[Facility Agent]
By:
3
[
WARNING
 
NOTE:
 
Please seek
 
Dutch legal advice
 
(i) until
 
the interpretation of
 
the term
 
"public" (as
referred
 
to in
Article 4.1(1)
 
of the
 
Capital
 
Requirements
 
Regulation
 
(EU/575/2013))
 
has been
 
published
 
by
the competent
 
authority, if the
participation of
 
a Lender
 
in a
 
Facility/Commitment requested by a
 
Dutch
borrower is
 
less
 
than
 
EUR
 
100,000 (or
 
the
foreign currency equivalent thereof) and (ii) as soon as the
interpretation
 
of
 
the
 
term
 
"public"
 
has
 
been
 
published
 
by
the
 
competent
 
authority,
 
if
 
the
 
Lender
 
is
considered to be part of the public
 
on the basis of
 
such interpretation.
]
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SCHEDULE
 
5
TIMETABLES
Advances
 
in
Advances in other
Delivery of a duly
completed Utilisation
Request (Clause 5.1
(
Delivery of a
Utilisation Request
)
Advances
 
in Euro
10
 
a.m.
 
London
time,
 
3
 
Business
Days prior to the
proposed Utilisation
Date
Dollars
11
 
a.m.
 
London
time,
 
3
 
Business
Days prior to the
proposed Utilisation
Date
currencies
11
 
a.m.
 
London
time,
 
3
 
Business
Days prior to the
proposed Utilisation
Date
Facility
 
Agent
determines
 
(in
relation to a
Utilisation)
 
the
 
Base
Currency
 
Amount
 
of the
Advance, if
required under
Clause 5.4 (
Lenders'
participation
)
11
 
a.m.
 
London
time,
 
3
 
Business
Days prior to the
proposed Utilisation
Date
N/A
 
11 a.m. London
time,
 
3
 
Business
Days
 
prior
 
to
 
the
proposed Utilisation
Date
Facility Agent notifies
the Lenders of the
Advance in accordance
with
Clause 5.4 (
Lenders'
participation
)
Delivery of a duly
completed Utilisation
Request
 
(Clause 5.5
(
Delivery of a
Utilisation Request
for a Swingline
Advance
))
Swingline Agent
notifies each Swingline
Lender of the amount,
currency and the Base
Currency Amount of
each Swingline
Advance (paragraph (c)
of Clause 5.8
(
Swingline Lenders'
Participation
))
Promptly upon
receipt from the
relevant Borrower
9.30 a.m. London time
on the proposed
Utilisation Date
Promptly upon
receipt from the
relevant Borrower
Promptly upon
receipt from the
relevant Borrower
11 a.m. New York
 
time
on the proposed
Utilisation Date
Promptly upon
receipt from the
relevant Borrower
Promptly upon
receipt from the
relevant Borrower
N/A
N/A
10250237317-v15
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Advances
 
in Euro
Advances
 
in
Dollars
Advances in other
currencies
Facility Agent receives
a
notification from a
Lender under Clause
6.2 (
Unavailability
of a currency
)
Facility
 
Agent
 
gives
notice
 
in
 
accordance
with Clause 6.2
(
Unavailability of a
currency
)
N/A
 
N/A
 
Quotation
 
Day as of
9 a.m. London time
N/A
 
N/A
 
Upon receipt of
notification from
 
the
Lenders
EURIBOR is fixed
 
Quotation
 
Day
 
as
 
of
11.00
 
a.m.
 
Brussels
time
N/A
 
N/A
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SCHEDULE
 
6
FORM OF BORROWER
 
ACCESSION LETTER
To:
 
[•] as Facility Agent
From:
 
[Subsidiary] and ABB Ltd
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit
 
Agreement")
1.
We
refer to the
 
Credit Agreement.
 
This is a
 
Borrower Accession Letter.
 
Terms
 
defined in
 
the
Credit
 
Agreement
 
have
 
the
 
same
 
meaning
 
in
 
this
 
Borrower
 
Accession
 
Letter unless given a
different meaning in this Borrower Accession Letter.
2.
 
[Subsidiary] agrees to become
 
an Additional
 
Borrower and
 
to be bound by
 
the terms of
 
the Credit
Agreement as
 
an
 
Additional
 
Borrower
 
pursuant
 
to
 
Clause
 
25.2
 
(
Additional
Borrowers
)
 
of
 
the
Credit Agreement.
3.
 
[Subsidiary]
 
is
 
a
 
company
 
duly
 
incorporated
 
under
 
the
 
laws
 
of
 
[name
 
of
 
relevant
jurisdiction].
4.
 
[Subsidiary] is a wholly owned Subsidiary of ABB Ltd.
5.
 
[Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
6.
 
This Borrower Accession Letter and
 
any non-contractual obligations arising out of
 
or
in connection with it are
 
governed by English law.
ABB LTD
 
[Subsidiary]
By
:
............................................................
 
By
:
.............................................................
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SCHEDULE
 
7
FORM OF RESIGNATION LETTER
To:
 
[•] as Facility Agent
From:
 
[resigning Borrower] and ABB Ltd
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit
 
Agreement")
1.
 
We
 
refer to
 
the Credit
 
Agreement.
 
This
 
is
 
a
 
Resignation Letter.
 
Terms
 
defined in
 
the
 
Credit
Agreement have
 
the
 
same meaning
 
in this
 
Resignation Letter
 
unless given
 
a different
 
meaning
in this Resignation Letter.
2.
 
Pursuant
 
to
 
Claus
e
25.
3
(
Resignation
 
of
 
a
 
Borrower
),
 
we
 
request
 
that
 
[resigning
Borrower] be released from
 
its obligations as a Borrower under the Credit Agreement.
3.
 
We confirm that:
(a)
 
no Default would result from the acceptance
 
of this request; and
(b)
 
[resigning Borrower] is under
 
no actual or contingent
 
liability under
 
the Credit
Agreement.
4.
 
This
 
Resignation
 
Letter
 
and
 
any
 
non-contractual
 
obligations
 
arising
 
out
 
of
 
or
 
in
connection with it are governed by English
 
law.
ABB LTD
 
[Subsidiary]
By
:
............................................................
 
By
:
.............................................................
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SCHEDULE
 
8
MATERIAL SUBSIDIARIES
Company Name
 
Jurisdiction
 
ABB Interest
(%)
ABB Treasury Center (USA), Inc.
 
United States
 
100
ABB (China) Ltd.
 
China
 
100
ABB Holdings, Inc.
 
United States
 
100
ABB Beteiligungs- und
Verwaltungsges
 
.
 
mbH
ABB Finance B.V.
 
Netherlands
 
100
ABB Finance (USA), Inc.
 
United States
 
100
ABB Motors and Mechanical Inc
 
United States
 
100
B&R Holding GmbH
 
Austria
 
100
ABB Installation Products
 
Inc
 
United States
 
100
10250237317-v15
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Germany
 
100
SCHEDULE 9
FORM OF INCREASE CONFIRMATION
To:
 
[
 
] as Facility
 
Agent, and ABB Ltd, for and on behalf
 
of each Obligor
From:
 
[the Increase Lender] (the "
Increase Lender
")
Dated:
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit
 
Agreement")
1.
 
We refer to the Credit Agreement.
 
This is an
 
Increase Confirmation.
 
Terms defined
 
in the Credit
Agreemen
t
have
 
the
 
same
 
meaning
 
in
 
this
 
Increase
 
Confirmation
 
unless given a
 
different
meaning in this Increase
 
Confirmation.
2.
 
We refer to Clause 2.2 (
Increase of Commitments
).
3.
 
The
 
Increase
 
Lender
 
agrees
 
to
 
assume
 
and
 
will
 
assume
 
all
 
of
 
the
 
obligations
corresponding
 
to
 
the
 
[Commitment/Swingline
 
Commitment]
 
specified
 
in
 
the
 
Schedule
 
(the
"
Relevant
 
Commitment
")
 
as
 
if
 
it
 
were
 
an
 
Original
 
Lender
 
under
 
the
 
Credit
 
Agreement.
4.
 
The
 
proposed
 
date
 
on
 
which
 
the
 
increase
 
in
 
relation
 
to
 
the
 
Increase
 
Lender
 
and
 
the
Relevant Commitment is to take effect
 
(the "
Increase Date
") is [
 
].
5.
 
On the Increase Date, the Increase
 
Lender becomes party to
 
the Finance Documents
 
as
a Lender.
6.
 
The
 
Facility
 
Office
 
and
 
address,
 
fax
 
number
 
and
 
attention
 
details
 
for
 
notices
 
to
 
the
Increase Lender
 
for the purposes
 
of Clause
 
31.2 (
Addresses
) are set
 
out in the
 
Schedule.
 
7.
 
The Increase Lender
 
confirms, for
 
the benefit
 
of the
 
Facility Agent and
 
without liability
 
to
 
any
Obligor,
 
that
 
it
 
is
 
[a
 
Qualifying
 
Lender
 
falling
 
within
 
paragraph[s]
 
[•]
 
of
 
the definition of
Qualifying Lender]/[not a
 
Qualifying Lender].
8.
 
The Increase Lender confirms
 
that it is a Qualifying Bank
9.
 
The Increase
 
Lender expressly
 
acknowledges the
 
limitations on
 
the Lenders'
 
obligations
referred to in paragraph (g) of Clause
 
2.2 (
Increase of Commitments
).
10.
 
This
 
Increase Confirmation may be
 
executed in
 
any number
 
of counterparts
 
and this
has the same effect
 
as if the signatures
 
on the counterparts
 
were on a single
 
copy of this
 
Increase
Confirmation.
11.
 
This
 
Increase
 
Confirmation
 
and
 
any
 
non-contractual obligations
 
arising
 
out
 
of
 
or
 
in
connection with it are governed by English
 
law.
12.
 
This Credit Agreement has been entered into on the
 
date stated at the beginning of
 
this
Credit Agreement.
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THE SCHEDULE
Relevant Commitment/rights and obligations to be
 
assumed by the Increase Lender
[
insert relevant details of Commitment, Dollar Swingline Commitment
 
and/or Euro Swingline
Commitment
]
[
Facility Office address, fax number and attention
 
details for notices and account details for
payments
]
[Increase Lender]
By
:
.............................................................
This
 
Increase Confirmation
 
is
 
accepted as
 
an Increase
 
Confirmation
 
for
 
the purposes
 
of
 
the
 
Credit
Agreement by the Facility
 
Agent and the Increase Date is confirmed as
[
].
Facility Agent
By
:
.............................................................
10250237317-v15
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SCHEDULE 10
REFERENCE RATE TERMS
PART IA
DOLLARS
 
– TERM RATE ADVANCES
CURRENCY AND CATEGORY OF ADVANCE/UNPAID
 
SUM/ACCRUAL:
Dollars
Term Rate Advances and accrual of commission or fees.
Definitions
Additional Business Days:
Any day other than:
 
(a)
 
a Saturday or a
 
Sunday; and
 
(b)
 
a
 
day
 
on
 
which
 
the
 
Securities
 
Industry
 
and
Financial
 
Markets
 
Association
 
(or
 
any
 
successor
organisation)
 
recommends
 
that
 
the
 
fixed
 
income
departments
 
of
 
its
 
members
 
be
 
closed
 
for
 
the
 
entire
 
day
 
for
 
purposes
 
of
 
trading
 
in
 
US Government
securities.
Break Costs:
The amount (if any) by which:
(a)
 
the
 
interest
 
(excluding
 
the
 
Margin)
 
which
 
a
 
Lender
should have
 
received for the
 
period from the
 
date
 
of
 
receipt
 
of
 
all
 
or
 
any
 
part
 
of
 
its participation in the
relevant Advance or Unpaid Sum
 
to the last day of the
current Interest
 
Period in
 
respect
 
of that
 
Advance
 
or
Unpaid
 
Sum,
 
had the
 
principal
 
amount
 
or
 
Unpaid
Sum
 
received been paid on the last day of that Interest
Period;
exceeds:
 
(b)
 
the amount which that Lender would be able to
obtain
 
by
 
placing
 
an
 
amount
 
equal
 
to
 
the
 
principal
amount or Unpaid
 
Sum received by it on
 
deposit
 
with
 
a
 
leading
 
bank
 
for
 
a
 
period starting on
 
the Business
Day following
 
receipt or
 
recovery
 
and ending
 
on the
 
last
day of
 
the current
 
Interest Period.
Business
 
Day
 
Conventions
(definition
 
of
 
"Month"
 
and
Clause 10(e)):
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(a)
If
 
any
 
period
 
is
 
expressed
 
to
 
accrue
 
by
 
reference
to
 
a
 
Month
 
or
 
any
 
number
 
of
 
Months
 
then,
 
in
respect of the last Month of that
 
period:
(i)
 
subject
 
to
 
paragrap
h
(iii
)
below,
 
if
 
the
numerically
 
corresponding
 
day
 
is
 
not
 
a
Business
 
Day,
 
that
 
period
 
shall
 
end
 
on
the
 
next
 
Business
 
Day
 
in
 
that
 
calendar
month
 
in
 
which
 
that
 
period
 
is
 
to
 
end
 
if there
is
 
one,
 
or
 
if
 
there
 
is
 
not,
 
on
 
the
 
immediately
preceding Business Day;
(ii)
 
if there is no numerically
 
corresponding
 
day in
the
 
calendar
 
month
 
in
 
which
 
that period is to
end, that period shall end on the
 
last
 
Business
Day
 
in
 
that
 
calendar
 
month; and
(iii)
 
if
 
an
 
Interest
 
Period
 
begins
 
on
 
the
 
last
Business
 
Day
 
of
a
calendar
 
month,
 
that
Interest
 
Period
 
shall
 
end
 
on
 
the
 
last
Business
 
Day
 
in
 
the
 
calendar
 
month
 
in
 
which
that Interest Period is to end.
(b)
 
If
 
an
 
Interest
 
Period
 
would
 
otherwise
 
end
 
on
 
a day
which
 
is
 
not
 
a
 
Business Day,
 
that
 
Interest
 
Period will
instead end on the next Business Day in
 
that
 
calendar
month
 
(if
 
there
 
is
 
one)
 
or
 
the
 
preceding Business
 
Day
(if there is not).
Fallback Interest Period:
One month.
Market Disruption Rate:
The
 
percentage
 
rate
 
per
 
annum
 
which is
 
the
 
aggregate
of:
 
(a)
 
the Term
 
Reference Rate;
 
and
 
(b)
 
the applicable Term Reference Rate
 
CAS.
Primary Term Rate:
(a)
 
The
 
applicable Screen
 
Rate as
 
of the
 
Quotation Time
of
 
that Ter
 
m
 
Rate Advance
 
and
 
for
 
a
 
period
 
equal
 
in
length to
 
the Interest
 
Period of
 
that Term Rate
 
Advance.
(b)
 
If
 
n
o
Screen
 
Rate
 
is
 
available
 
for
 
the
 
Interest
 
Period
 
of
 
a
 
Term
 
Rate
 
Advance,
 
the
 
Interest Period of the
Advance
 
shall
 
(if
 
it
 
is
 
longer
 
than
 
the
 
applicable
 
Fallback
 
Interest
 
Period)
 
be shortened
 
to
 
the
 
applicable
 
Fallback
 
Interest
 
Period and the
 
applicable
Term
 
Reference Rate
 
shall be
 
determined pursuant
 
to
the definition
 
of "Term Reference Rate".
(c)
 
If
 
paragraph
 
(b)
 
above
 
applies
 
but
 
no
 
Screen Rate
is
 
available
 
for
 
the
 
Interest
 
Period
 
of
 
that Advance
and
 
it is
 
not
 
possible to
 
calculate the Term
 
Reference
Rate
 
fo
r
the
 
Fallback
 
Interest Period, the applicable
Term Reference Rate shall
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be
 
the
 
Historic
 
Primary
 
Term
 
Rate
 
for
 
that
Advance.
(d)
 
If
 
paragraph
 
(c)
 
above
 
applies
 
but
 
it
 
is
 
not
 
possible
to
 
calculate the Historic
 
Primary Term Rate then:
(i)
 
there shall be no Term
 
Reference Rate for that
Advance for
 
that
 
Interest Period
 
and
 
Clause
 
9.1
 
(
Calculation
 
of
 
interest
 
–
Term
 
Rate
 
Advance
)
 
will
 
not
 
apply
 
to
 
that
Advance for that Interest Period;
 
and
(ii)
 
that
 
Advance
 
shall
 
be
 
a
 
"Compounded Rate
Advance"
 
for
 
that
 
Interest
 
Period
 
and Clause
9.2
 
(
Calculation
 
of
 
interest
 
–
Compounded
Rate
 
Advance
)
 
shall apply to that Advance for
that Interest Period.
If
 
the
 
aggregate
 
of
 
the
 
Primary
 
Term
 
Rate
 
and
 
the
 
Term
Reference
 
Rate
 
CAS
 
or
 
Fallback
 
CAS
 
(as
 
applicable)
 
is
 
less
than zero,
 
the aggregate
 
of the Primary
 
Term Rate and the
 
Term
Reference Rate CAS
 
or Fallback
 
CAS (as
 
applicable) shall
 
be
deemed to be zero.
Quotation Day:
(a)
 
Subject
 
to
 
paragraph
 
(b)
 
below,
 
two
 
Additional
Business
 
Days
 
before
 
the
 
first
 
day
 
of
 
the
 
relevant
Interest
 
Period
 
(unless
 
market
 
practice
 
differs
 
in
 
the
relevant
 
syndicated
 
loan
 
market,
 
in
 
which case the
Quotation Day
 
will be
 
determined
 
by the
 
Facility
 
Agent
in
 
accordance
 
with
 
that
 
market
 
practice
 
(and
 
if
quotations
 
would
 
normally
 
be
 
given on more than
 
one
day, the Quotation Day will be the last of those days)).
(b)
 
If the
 
Term Reference
 
Rate is,
 
or is
 
based
 
on, the
 
Central
 
Bank
 
Rate,
 
two
 
Additional
 
Business
 
Days before the
first day of the relevant Interest Period.
Quotation Time:
The Quotation Day.
Relevant Market:
The market for overnight cash borrowing collateralised
 
by US Government
 
securities.
Reporting Time:
Close of
 
business in London on
 
the
 
Quotation
 
Day for
 
the relevant Advance.
Published
 
Rate
 
Contingency
Period:
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30 days.
Screen Rate:
The
 
Term
 
SOF
R
reference
 
rate
 
administered
 
by CME
Group Benchmark
 
Administration
 
Limited (or any
 
other person
which
 
takes
 
over
 
the
 
administration
 
of
 
that
 
rate)
 
for
 
the
 
relevant
 
period
 
published
 
by
 
CME
 
Group Benchmark
Administration
 
Limited (or any
 
other person which
 
takes
 
over
the publication
 
of that rate).
Term
 
Reference Rate CAS:
The credit adjustment spread specified
 
below for a tenor of the
same
 
length
 
as
 
the
 
relevant
 
Interest
 
Period
 
of
 
the
 
relevant
Advance:
Interest Period
 
Applicable
 
credit
adjustment spread
1 month or less
 
0.10 per cent. per annum
3
 
months
 
or
 
less
 
but
greater than 1 month
6
 
months
 
or
 
less
 
but
greater than 3 months
Interest Periods
0.25 per cent. per annum
Periods
 
capable
 
of
 
selection
 
as
Interest
 
Periods
 
(paragraph
 
(b)
 
of
Clause
 
10
 
(
Selection
 
of
 
Interest
Periods
)):
One, three or six months or some other period which has
 
been
agreed between the relevant Borrower (or ABB
 
on its
 
behalf)
 
and
 
the
 
Facility
 
Agent
 
(acting
 
on
 
the
 
instructions
 
of
 
all
the
 
Lenders
)
provided
 
tha
t
for
 
an Interest Period
 
shorter
than one
 
Month, the
 
Screen Rate applicable for
 
such Interest
Period will
 
be Screen
 
Rate
 
for one
 
month.
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0.15 per cent. per annum
(a)
 
If
 
any
 
period
 
is
 
expressed
 
to
 
accrue
 
by
reference to a Month or any number of Months then,
in respect
 
of the
 
last Month
 
of that
 
period:
(i)
 
subject
 
to
 
paragrap
h
(iii)
 
below,
 
if
 
the
numerically
 
corresponding
 
day
 
is
 
not
 
a
Business
 
Day,
 
that
 
period
 
shall
 
end
 
on
 
the
next Business Day in that calendar month in
which that period is to
 
end if
 
there
 
is
 
one, or
if there
 
is not,
 
on the
 
immediately preceding
Business Day;
(ii)
 
if
 
there
 
is
 
no
 
numerically
corresponding
 
day
 
in
 
the
 
calendar
 
month
in
 
which
 
that
 
period
 
is
 
to
 
end,
 
that
 
period
 
shall
 
end
 
on
 
the
 
last Business
 
Day
 
in
that
 
calendar
 
month;
 
and
(iii)
 
if
 
an
 
Interest
 
Period
 
begins
 
on
 
the
 
last
Business
 
Day
 
of
 
a
 
calendar
 
month,
 
that
Interest
 
Period
 
shall
 
end
 
on
 
the
 
last
Business Day
 
in the calendar
 
month in
 
which
that Interest Period is to end.
(b)
 
If
 
an
 
Interest
 
Period
 
would otherwise
 
end on
 
a
 
day
which is not
 
a Business
 
Day, that Interest Period will
instead
 
end
 
on
 
the
 
next
 
Business
 
Day
 
in
 
that
calendar
 
month
 
(if
 
there
 
is
 
one)
 
or
 
the
 
preceding
Business Day (if there
 
is not).
Central Bank Rate:
(a)
 
The
 
short-term
 
interest
 
rate
 
target
 
set
 
by
 
the
 
US
Federal Open Market
 
Committee
 
as published
 
by
 
the
Federal
 
Reserve
 
Bank
 
of
 
New
 
York from time to
time; or
 
(b)
 
if
 
that
 
target
 
is
 
not
 
a
 
single
 
figure,
 
the
arithmetic mean of:
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PART IB
DOLLARS – COMPOUNDED RATE
 
ADVA
 
NCES
CURRENCY
 
AND
 
CATEGORY
 
OF
 
ADVANCE/UNPAID
 
SUM:
Dollars
 
–
Compounded Rate Advances
Definitions
Additional Business Days:
An RFR Banking Day.
Break Costs:
Not applicable.
Business
 
Day
 
Conventions
(definition
 
of
 
"Month"
 
and
Clause 10(e)):
(i)
 
the
 
upper
 
bound
 
of
 
the
 
short-term
interest
 
rate
 
target
 
range
 
set
 
by
 
the
 
US
Federal
 
Open
 
Market
 
Committee
 
and
published
 
by
 
the
 
Federal
 
Reserve
 
Bank
 
of
New York; and
(ii)
 
the lower bound of that target range.
In
 
relation
 
to
 
the
 
Central
 
Bank
 
Rate
 
prevailing
 
at
 
close of
 
business
 
on
 
any
 
RFR
 
Banking
 
Day,
 
arithmetic mean
(calculated by
 
the Facility Agent)
 
of the Central Bank
 
Rate
 
Spreads
 
for
 
the
 
five
 
most
 
immediately preceding
 
RFR
Banking Days
 
for which
 
the RFR
 
is
 
available, excluding
 
the
RFR Banking Days
 
with the highest
 
and lowest Central
 
Bank
Rate Spreads.
For
 
this
 
purpose,
Central
 
Bank
 
Rate
 
Spread
means,
 
in
relation to
 
any RFR
 
Banking Day
,
the difference (expressed
as
 
a
 
percentage
 
rate
 
per
 
annum) calculated
 
by
 
the
 
Facility
Agent (or
 
by
 
any other Financ
e
Party
 
which agrees t
o
do so
in place of the Facility Agent)
 
between:
(a)
 
the RFR for that RFR Banking Day; and
(b)
 
the
 
Central
 
Bank
 
Rate
 
prevailing
 
a
t
close
 
of
business on that RFR Banking Day.
 
Daily Rate:
The "
Daily Rate
" for any RFR Banking Day is:
(a)
 
the RFR for that RFR Banking Day; or
(b)
 
if
 
the
 
RFR
 
is
 
not
 
available
 
for
 
that
 
RFR
Banking
 
Day,
 
the
 
percentage
 
rate
 
per
 
annum
which is the aggregate of:
 
(i)
 
the
 
Central
 
Bank
 
Rate
 
for
 
that
 
RFR
Banking Day;
 
and
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment;
 
or
 
(c)
 
if paragraph (b) above applies but
 
the Central
Bank
 
Rate
 
for
 
that
 
RFR
 
Banking
 
Day
 
is
 
not
available, the percentage
 
rate per annum
 
which is the
aggregate of:
(i)
 
the most recent Central
 
Bank Rate for a
 
day
which
 
is
 
no
 
more
 
than
 
two
 
RFR
 
Banking
 
Days
 
before
 
that
 
RFR
 
Banking
Day; and
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Central
 
Bank
 
Rate
Adjustment:
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment,
 
rounded, in either case, to four decimal places, if the
aggregate
 
of
 
that
 
rate
 
and
 
the
 
Baseline
 
CAS
 
or
 
Fallback
CAS
 
(as
 
applicable)
 
is
 
less
 
than
 
zero,
 
the
 
Daily Rate shall
be deemed
 
to be
 
such a
 
rate that the
 
aggregate of
 
the Daily
Rate and the
 
Baseline CAS or Fallback
 
CAS (as applicable)
is zero.
Fallback CAS:
The
 
Term
 
Reference
 
Rate
 
CAS
 
applicable
 
to
 
Term
Rate Advances in Dollars.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum
 
of:
 
(a)
 
the Cumulative
 
Compounded
 
RFR Rate
 
for the
Interest Period of the relevant
 
Advance; and
 
(b)
 
the applicable Fallback CAS.
Relevant Market:
The
 
market
 
for
 
overnight
 
cash
 
borrowing
collateralised by US Government
 
securities.
 
Reporting Day:
The Business Day which follows the day which is
 
the
Lookback
 
Perio
d
prior
 
to the
 
last day
 
of
 
the
 
Interest
Period.
Reporting Time:
Close of business
 
in London on the
 
Reporting
 
Day for
the relevant Advance.
RFR:
The
 
secured
 
overnight
 
financing
 
rate
 
(SOFR)
administered
 
by
 
the
 
Federal
 
Reserve
 
Bank
 
of
 
New York
 
(or
 
any
 
other
 
person
 
which
 
takes
 
over
 
the
 
administration
of that rate) published
 
by the Federal
 
Reserve
 
Bank
 
of
 
New
 
Yor
 
k
 
(or
 
any
 
other
 
person
 
which takes over the
 
publication
of that rate).
RFR Banking Day:
Any day other than:
(a)
 
a Saturday or Sunday;
 
and
(b)
 
a
 
day
 
on
 
which
 
the
 
Securities
 
Industry
 
and
Financial
 
Markets
 
Association
 
(or
 
any
successor
 
organisation)
 
recommends
 
that
 
the
 
fixed
income
 
departments
 
of
 
its
 
members
 
be closed for
the
 
entire
 
day
 
for
 
purposes
 
of
 
trading
 
in
 
US
Government securities.
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Published
 
Rate
 
Contingency
Period:
Interest Periods
Periods
 
capable
 
of
 
selection
 
as
Interest
 
Periods
 
(paragraph
 
(b) of
 
Clause
 
10
 
(
Selection
 
of
Interest Periods
))
30 days.
One,
 
three
 
or
 
six
 
months
 
or
 
some
 
other
 
period
 
which has
been
 
agreed
 
between
 
the
 
relevant
 
Borrower
 
(or ABB on
its behalf) and the Facility Agent (acting on the instructions
of all the Lenders).
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PART
 
II
STERLING
CURRENCY:
Sterling.
Definitions
Additional Business Days:
An RFR Banking Day.
Baseline CAS:
The
 
credit
 
adjustment
 
spread
 
specified
 
below
 
for
 
a
tenor of the same length as the relevant Interest Period
 
of the
relevant Advance:
Interest Period
 
Applicable
 
credit
adjustment spread
1 month or less
 
0.0326
 
per
 
cent.
 
per
annum
3
 
months
 
or
 
less
 
but
greater than 1 month
6
 
months
 
or
 
less
 
but
greater than 3 months
0.2766
 
per
 
cent.
 
per
annum
(a)
 
If any period is
 
expressed to accrue by reference to
 
a
Month
 
or
 
any
 
number
 
of
 
Months
 
then,
 
in respect of
the last Month of that period:
(i)
 
subject
 
to
 
paragrap
h
(iii
)
below,
 
i
f
the
numerically
 
corresponding
 
day
 
is
 
not
 
a
Business
 
Day,
 
that
 
period
 
shall
 
end
 
on the
next
 
Business
 
Day
 
in
 
that
 
calendar
 
month
 
in
which that
 
period is to end
 
if
 
there
 
is
 
one,
 
or
if
 
there
 
is
 
not,
 
on
 
the
 
immediately preceding
Business Day;
(ii)
 
if there
 
is no
 
numerically corresponding
 
day in
the calendar
 
month in
 
which that period
 
is to
end, that period shall
 
end on
 
the
 
last
 
Business
Day
 
in
 
that
 
calendar
 
month; and
(iii)
 
if
 
an
 
Interest
 
Period
 
begins
 
on
 
the
 
last
Business
 
Day
 
of
 
a
 
calendar
 
month,
 
that
Interest
 
Period
 
shall
 
end
 
on
 
the
 
last
Business Day in
 
the calendar month
 
in
 
which
that Interest Period is to end.
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0.1193
 
per
 
cent.
 
per
annum
Break Costs:
Not applicable.
Business
 
Day
 
Conventions
(definition
 
of
 
"Month"
 
and
Clause 10(e)):
(b)
 
If
 
an
 
Interest
 
Period
 
would
 
otherwise
 
end
 
on
 
a
 
day
which is not
 
a Business
 
Day,
 
that Interest
 
Period
 
will
instead end
 
on the
 
next
 
Business
 
Day in that
 
calendar
month (if there is
 
one)
 
or the preceding Business
 
Day
(if there is not).
Central Bank Rate:
The Bank of England's
 
Bank Rate as published by
 
the
 
Bank of England from time
 
to time.
Central Bank Rate Adjustment:
In relation to the Central
 
Bank Rate prevailing at close
of
 
business
 
on
 
any
 
RFR
 
Banking
 
Day,
 
arithmetic
 
mean
(calculated
 
by
 
the
 
Facility
 
Agent)
 
of
 
the
 
Central
 
Bank
 
Rate
Spreads
 
for
 
the
 
five
 
most
 
immediately
 
preceding
 
RFR
Banking
 
Days
 
for
 
which
 
the
 
RFR
 
is
 
available, excluding
the
 
RFR
 
Banking
 
Days
 
with
 
the
 
highest and
 
lowest
 
Central
Bank Rate Spreads.
For
 
this
 
purpose
,
Central
 
Bank
 
Rate
 
Sprea
d
means, in
relation
 
to
 
any
 
RFR
 
Banking
 
Day
,
the
 
difference
 
(expressed
as
 
a
 
percentage
 
rat
e
per
 
annum)
 
calculated
 
by
 
the
 
Facility
Agen
t
(or
 
b
y
any
 
other
 
Finance
 
Party
 
which
 
agrees t
o
do
 
so
in
 
place
 
of
 
the
 
Facility
 
Agent)
 
between:
(a)
 
the RFR for that RFR Banking Day; and
(b)
 
the
 
Central
 
Bank
 
Rate
 
prevailing
 
a
t
close
 
of
business on that RFR Banking Day.
 
Daily Rate:
The "
Daily Rate
" for any RFR
 
Banking Day is:
(a)
 
the RFR for that RFR Banking Day; or
(b)
 
if the
 
RFR is
 
not available
 
for that
 
RFR Banking
Day, the percentage rate per
 
annum which is
 
the
aggregate of:
 
(i)
 
the
 
Central
 
Bank
 
Rate
 
for
 
that
 
RFR
Banking Day;
 
and
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment;
 
or
 
(c)
 
if
 
paragrap
h
(b
)
above
 
applies
 
but
 
the
 
Central
Bank
 
Rat
e
fo
r
that
 
RFR
 
Banking
 
Day
 
is
 
not
available, the percentage rate
 
per annum which
 
is the
aggregate of:
 
(i)
 
the most recent Central Bank Rate for a da
y
which
 
is
 
no
 
more
 
tha
n
fiv
e
RFR
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Banking Days before that RFR
 
Banking Day;
and
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment,
 
rounded,
 
in
 
either
 
case,
 
t
o
fou
r
decimal
 
places
,
if
 
the
aggregate of that
 
rate and the
 
Baseline CAS or Fallback CAS
(as
 
applicable)
 
is
 
less
 
than
 
zero,
 
the
 
Daily
 
Rate shall
 
be
deemed to
 
be such a rate
 
that the aggregate
 
of the Daily
 
Rate
and the Baseline CAS
 
or Fallback CAS (as
 
applicable) is zero.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum
 
of:
(a)
 
the Cumulative Compounded RFR Rate for
 
the
Interest Period of the relevant
 
Advance; and
 
(b)
 
the applicable Baseline CAS.
Relevant Market:
The sterling wholesale
 
market.
Reporting Day:
The day which
 
is the Lookback
 
Period prior to the
 
last day
 
of
the Interest
 
Period or,
 
if that
 
day is
 
not a
 
Business
 
Day,
 
the
immediately following Business Day.
Reporting Time:
Close of business in London
 
on the Reporting
 
Day for
the relevant Advance.
RFR:
The
 
SONIA
 
(sterling
 
overnight
 
index
 
average)
reference rate
 
displayed on the
 
relevant screen of any
authorised distributor of that reference
 
rate.
RFR Banking Day:
A
 
day
 
(other
 
than
 
a
 
Saturday
 
or
 
Sunday)
 
on
 
which
banks are open for general business in
 
London.
Published
 
Rate
 
Contingency
Period:
Interest Periods
Periods
 
capable
 
of
 
selection
 
as
Interest
 
Periods
 
(paragraph
 
(b)
 
of
Clause
 
10
 
(
Selection
 
of
 
Interest
Periods
))
One,
 
three
 
or
 
six months
 
or
 
some
 
other
 
period
 
which has
been
 
agreed
 
between
 
the
 
relevant
 
Borrower
 
(or ABB on
its behalf)
 
and the
 
Facility
 
Agent (acting
 
on the
 
instructions of
all the Lenders).
10250237317-v15
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30 days.
PART
 
III
SWISS FRANCS
CURRENCY:
Swiss francs.
Definitions
Additional Business Days:
An RFR Banking Day.
Baseline CAS:
The
 
credit
 
adjustment
 
spread
 
specified
 
below
 
for
 
a
tenor of the same length as the relevant Interest Period
 
of the
relevant Advance:
Interest Period
 
Applicable
 
credit
adjustment spread
1 month or less
 
-0.0571
 
per
 
cent.
 
per
annum
3
 
months
 
or
 
less
 
but
greater than 1 month
6
 
months
 
or
 
less
 
but
greater than 3 months
0.0741
 
per
 
cent.
 
per
annum
(a)
 
If any period
 
is expressed to accrue
 
by reference to
 
a
Month
 
or
 
any
 
number
 
of
 
Months
 
then,
 
in respect of
the last Month of that period:
(i)
 
subject
 
to
 
paragrap
h
(iii
)
below,
 
if
 
the
numerically
 
corresponding
 
day
 
is
 
not
 
a
Business
 
Day,
 
that
 
period
 
shall
 
end
 
on the
next
 
Business
 
Day
 
in
 
that
 
calendar
 
month in
which that
 
period
 
is to end if there
 
is
 
one,
 
or
if
 
there
 
is
 
not,
 
on
 
the
 
immediately preceding
Business Day;
(ii)
 
if there is
 
no numerically
 
corresponding
 
day in
the calendar month
 
in which that
 
period is
 
to
end, that period shall
 
end
 
on the
 
last
 
Business
Day
 
in
 
that
 
calendar
 
month; and
(iii)
 
if
 
an
 
Interest
 
Period
 
begins
 
on
 
the
 
last
Business
 
Day
 
of
 
a
 
calendar
 
month,
 
that
Interest
 
Period
 
shall
 
end
 
on
 
the
 
last
Business Day in the calendar
 
month in which
that Interest Period is to end.
10250237317-v15
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0.0031
 
per
 
cent.
 
per
annum
Break Costs:
Not applicable.
Business
 
Day
 
Conventions
(definition
 
of
 
"Month"
 
and
Clause 10(e)):
(b)
 
If
 
an
 
Interest
 
Period
 
would
 
otherwise
 
end
 
on
 
a
 
day
which is not
 
a Business Day,
 
that Interest
 
Perio
d
will
instead
 
end
 
on the
 
next
 
Business
 
Day in
 
that calendar
month (if there is one) or the
 
preceding Business Day
(if there is not).
Central Bank Rate:
The policy
 
rate of
 
the Swiss
 
National Bank
 
as published
 
by the Swiss National Bank from time to time.
Central Bank Rate
 
Adjustment:
In relation to the Central
 
Bank Rate prevailing at close
of
 
business
 
on
 
any
 
RFR
 
Banking
 
Day,
 
arithmetic
 
mean
(calculated
 
by
 
the
 
Facility
 
Agent)
 
of
 
the
 
Central
 
Bank
 
Rate
Spreads for
 
the five
 
most
 
immediately preceding
 
RFR Banking
Days
 
for
 
which
 
the
 
RFR
 
is
 
available, excluding the RFR
Banking Days with
 
the highest and lowest Central Bank
 
Rate
Spreads.
For
 
this
 
purpose
,
Central
 
Bank
 
Rate
 
Spread
means, in
relation
 
to
 
any
 
RFR
 
Banking
 
Day
,
the
 
difference
 
(expressed
as
 
a
 
percentage
 
rat
e
per
 
annum)
 
calculated
 
by
 
the
 
Facility
Agen
t
(or
 
by
 
any other
 
Finance
 
Party
 
which
 
agrees t
o
do
 
so
in
 
place
 
of
 
the
 
Facility
 
Agent)
 
between:
(a)
 
the RFR for that RFR Banking Day; and
(b)
 
the
 
Central
 
Bank
 
Rate
 
prevailing
 
a
t
close
 
of
business on that RFR Banking Day.
Daily Rate:
The "
Daily Rate
" for any RFR Banking Day is:
(a)
 
the RFR for that RFR Banking Day; or
(b)
 
if the
 
RFR is
 
not available
 
for that
 
RFR Banking
Day, the percentage rate per
 
annum which is
 
the
aggregate of:
(i)
 
the
 
Central
 
Bank
 
Rate
 
for
 
that
 
RFR
Banking Day;
 
and
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment;
 
or
 
(c)
 
if
 
paragrap
h
(b
)
above
 
applies
 
but
 
the
 
Central
Bank
 
Rat
e
fo
r
that
 
RFR
 
Banking
 
Day
 
is
 
not
available, the percentage
 
rate per annum which is
 
the
aggregate of:
(i)
 
the most recent Central
 
Bank Rate for a da
y
which
 
is
 
no
 
more
 
tha
n
fiv
e
RFR
10250237317-v15
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Banking Days before
 
that RFR
 
Banking Day;
and
(ii)
 
the
 
applicable
 
Central
 
Bank
 
Rate
Adjustment,
 
rounded,
 
in
 
either
 
case,
 
t
o
fou
r
decimal
 
places
,
if
 
the
aggregate of
 
that rate and the
 
Baseline CAS or Fallback CAS
(as
 
applicable)
 
is
 
less
 
than
 
zero,
 
the
 
Daily
 
Rate shall
 
be
deemed to
 
be such a
 
rate that
 
the aggregate of the Daily
 
Rate
and the Baseline
 
CAS or Fallback CAS
 
(as applicable) is zero.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum
 
of:
 
(a)
 
the Cumulative Compounded RFR Rate for
 
the
Interest Period of the relevant
 
Advance; and
(b)
 
the applicable Baseline CAS.
Relevant Market:
The Swiss francs overnight repo market.
Reporting Day:
The day which is the Lookback Period
 
prior to the last
day
 
of
 
the
 
Interest
 
Period
 
or,
 
if
 
that
 
day
 
is
 
not
 
a
 
Business
 
Day,
 
the
 
immediately
 
following
 
Business
 
Day.
Reporting Time:
Close of business in London on the Reporting
 
Day for
the relevant Advance.
RFR:
The
 
SARON
 
(Swiss
 
Average
 
Rate
 
Overnight)
reference rate administered by
 
SIX (or any
 
other person
 
which
takes
 
over
 
the
 
administration
 
of
 
that
 
rate) as
 
at the
 
close of
trading
 
on
 
the
 
SIX
 
Swiss
 
Exchange
 
on
 
the
 
relevant
 
day
 
displayed
 
on
 
page
 
SARON.S
 
of
 
the Thomson Reuters
screen under the heading CLSFIX.
RFR Banking Day:
A
 
day
 
(other
 
than
 
a
 
Saturday
 
or
 
Sunday)
 
on
 
which
 
banks
are
 
open
 
for
 
the
 
settlement
 
of
 
payments
 
and foreign
exchange transactions in Zurich.
Published
 
Rate
 
Contingency
Period:
Interest Periods
Periods
 
capable
 
of
 
selection
 
as
Interest
 
Periods
 
(paragraph
 
(b)
 
of
One,
 
three
 
or
 
six
 
months
 
or
 
some
 
other
 
period
 
which has
been
 
agreed
 
between
 
the
 
relevant
 
Borrower
 
(or
10250237317-v15
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30 days.
Clause
 
10
 
(
Selection
 
of
 
Interest
Periods
))
ABB on
 
its behalf)
 
and the
 
Facility Agent
 
(acting on
 
the
instructions of all
 
the Lenders).
10250237317-v15
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PART IV
EURO
CURRENCY:
 
Euro.
Definitions
Additional Business Days:
A TARGET Day.
Break Costs:
The amount (if any) by which:
(a)
 
the
 
interes
t
(excluding
 
the
 
Margin)
 
which
 
a
 
Lender
 
should
 
have
 
received
 
for
 
the
 
period from the date
of receipt
 
of all
 
or any
 
part of
 
its participation in the
relevant Advance
 
or Unpaid
 
Sum to the
 
last day
 
of the
current Interest Period in
 
respect
 
of
 
that
 
Advance
 
or
Unpaid
 
Sum,
 
had
 
the
 
principal
 
amount
 
or
 
Unpaid
Sum
 
received
 
been paid
 
on the
 
last day
 
of that Interest
Period;
exceeds:
 
(b)
 
the amount which
 
that Lender
 
would be able to
obtain
 
by
 
placing
 
an
 
amount
 
equal
 
to
 
the
principal
 
amount
 
or
 
Unpaid
 
Sum
 
received
 
by
 
it
 
on
deposit
 
with
 
a
 
leadin
g
bank
 
for
 
a
 
period starting
on
 
the
 
Business
 
Day following
 
receipt or recovery and
ending
 
on
 
the
 
last
 
day
 
of
 
the
 
current Interest Period.
Business
 
Day
 
Conventions
(definition
 
of
 
"Month"
 
and
Clause 10(e)):
10250237317-v15
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(a)
 
If
 
any
 
period
 
is
 
expressed
 
to
 
accrue
 
by
 
reference
 
to
 
a
 
Month
 
or
 
any
 
number
 
of
 
Months
 
then, in respect
 
of the last
 
Month of that
 
period:
(i)
 
subject
 
to
 
paragrap
h
(iii
)
below,
 
if
 
the
 
numerically
 
corresponding
 
day
 
is
 
not
 
a
 
Business
 
Day,
 
that
 
period
 
shall
 
end
 
on
 
the
 
next
 
Business
 
Day
 
in
 
that
 
calendar
 
month
 
in
 
which
 
that
 
period
 
is
 
to
 
end
 
if
 
there
 
is
 
one,
 
or
 
if
 
there
 
is
 
not,
 
on
 
the
 
immediately preceding Business Day;
(ii)
 
if there is
 
no numerically corresponding
 
day in the calendar
 
month in which
 
that
 
period is to end,
 
that period
 
shall end
 
on
 
the
 
last
 
Business
 
Day
 
in
 
that
 
calendar
 
month; and
(iii)
 
if
 
an
 
Interest
 
Period
 
begins
 
on
 
the
 
last
 
Business
 
Day
 
of
 
a
 
calendar
 
month,
 
that
 
Interest
 
Period
 
shall
 
end
 
on
 
the
 
last
Business Day in the calendar month in which
that Interest Period is to end.
(b)
 
If
 
an
 
Interest
 
Period
 
would
 
otherwise
 
end
 
on
 
a
 
day
which is not a Business Day,
 
that Interest
 
Period
 
will
instead end
 
on the
 
next Business
 
Day in that
 
calendar
month (if there is one) or the preceding Business
 
Day
(if there is not).
Primary Term
 
Rate:
(a)
 
The applicable
 
Screen Rate
 
as of
 
the Specified Time
on the Quotation Day for Euro and for a
 
period equal
in
 
length
 
to
 
the
 
Interest
 
Period
 
of
 
that
 
Term
 
Rate
Advance; or
(b)
 
if
 
no
 
Screen
 
Rate is
 
available for
 
the
 
Interest
 
Period
of that Advance, the Interpolated Screen
 
Rate for that
Term Rate Advance
If any
 
such rate
 
is less
 
than zero,
 
the Primary
 
Term Rate shall
be deemed to be zero.
Quotation Day:
Two TARGET Days before
 
the first
 
day of
 
the relevant
 
Interest
Period
 
(unless
 
market
 
practice
 
differs
 
in
 
the
 
Relevant
Market, in
 
which case
 
the Quotation
 
Da
y
will
 
be determined
 
by
the
 
Facilit
y
Agent in
 
accordance with
 
market
 
practice
 
in
 
the
 
Relevant
 
Market
 
(and
 
if
quotations would normally
 
be given on
 
more than one
 
day, the
Quotation Day
 
will be the last of
 
those days)).
Quotation Time:
Quotation Day 11:00 a.m. (Brussels time).
Relevant Market:
The European interbank market.
Term
 
Reference Rate CAS:
Not applicable.
Screen
 
Rate:
The
 
euro
 
interbank
 
offered
 
rate
 
administered
 
by
 
the
European
 
Money
 
Markets
 
Institute
 
(or
 
any
 
other
 
person
which takes
 
over the administration
 
of that rate)
 
for
 
the
relevant period displayed
 
(before any
 
correction, recalculation
 
or
 
republication
 
by
 
the
 
administrator)
 
on
 
page
EURIBOR01 of
 
the
 
Thomson
 
Reuters screen.
Interest Periods
Periods
 
capable
 
of
 
selection
 
as
Interest
 
Periods
 
(paragraph
 
(b)
 
of
Clause
 
10
 
(
Selection
 
of
 
Interest
Periods
))
10250237317-v15
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One,
 
three or
 
six months or
 
som
e
other period
 
which
has
 
been
 
agreed
 
between
 
the
 
relevant
 
Borrower
 
(or
ABB on
 
its behalf)
 
and the
 
Facility
 
Agent (acting
 
on
the instructions of all the Lenders).
exhibit04x7p165i1 exhibit04x7p165i0
SCHEDULE 11
DAILY NON-CUMULATIVE
 
COMPOUNDED RFR RATE
The "
Daily Non-Cumulative
 
Compounded RFR
 
Rate
" for any RFR
 
Banking Day "i"
 
during
 
an Interest
Period for a Compounded
 
Rate Advance
 
is the percentage
 
rate per annum (without
 
rounding, to
 
the extent
reasonably
 
practicable for
 
the
 
Finance Party
 
performing
 
the
 
calculation,
 
taking into
 
account the
 
capabilities
of any software used for that
 
purpose) calculated
 
as set out below:
 
where:
"
UCCDR
i
"
 
means
 
the
 
Unannualised
 
Cumulative
 
Compounded
 
Daily
 
Rate
 
for
 
that
 
RFR Banking
Day "
i
";
"
UCCDR
i-1
"
means,
 
in
 
relation
 
to
 
that
 
RFR
 
Banking
 
Day
 
"
i
",
 
the
 
Unannualised
 
Cumulative
Compounded Daily
 
Rate for
 
the immediately
 
preceding RFR
 
Banking Day
 
(if any)
 
during that Interest
Period;
"
dcc
"
means
 
360
 
or,
 
in
 
any
 
case
 
where
 
market
 
practice
 
in
 
the
 
Relevant
 
Market
 
is
 
to
 
use
 
a different
number for quoting the number of days in
 
a year, that number;
"
n
i
" means the number of calendar days
 
from, and including, that RFR Banking
 
Day "
i
" up to,
 
but
excluding, the following RFR Banking Day;and
the "
Unannualised Cumulative
 
Compounded Daily
 
Rate
" for any
 
RFR Banking
 
Day (the "
Cumulated
RFR
 
Banking
 
Day
")
 
during
 
that
 
Interest
 
Period
 
is
 
the
 
result
 
of
 
the
 
below calculation
 
(without
rounding,
 
to
 
the
 
extent
 
reasonably
 
practicable
 
for
 
the
 
Finance
 
Party
 
performing the
 
calculation, taking
into account the capabilities of any software
 
used for that purpose):
 
where:
"
ACCDR
"
 
means
 
the
 
Annualised
 
Cumulative
 
Compounded
 
Daily
 
Rate
 
for
 
that
Cumulated RFR Banking Day;
"
tn
i
"
 
means the
 
number
 
of
 
calendar
 
days
 
from, and
 
including,
 
the
 
first
 
day
 
of
 
the
 
Cumulation
Period to,
 
but excluding, the
 
RFR Banking Day which
 
immediately follows the
 
last
 
day
 
of
 
the
Cumulation Period;
"
Cumulation Period
" means
 
the period
 
from, and
 
including, the
 
first
 
RFR Banking
 
Day of
that Interest Period to, and
 
including, that Cumulated RFR Banking Day;
"
dcc
" has the meaning given to that term
 
above; and
the
 
"
Annualised Cumulative
 
Compounded Daily
 
Rate
" for
 
that Cumulated RFR Banking
Day
 
is
 
the
 
percentage
 
rate
 
per
 
annu
m
(rounded
 
to
 
the
 
same
 
number
 
of
 
decimal
 
places
 
as
10250237317-v15
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70-41048667
exhibit04x7p166i0
specified
 
for
 
the
 
Daily
 
Rate
 
in
 
the
 
applicable
 
Reference
 
Rate
 
Terms
)
calculated
 
as
 
set
 
out
 
below:
 
where:
"
d
0
" means the number of RFR Banking Days
 
in the Cumulation Period;
"
Cumulation Period
" has the meaning given to
 
that term above;
"
i
" means
 
a series
 
of whole
 
numbers from
 
one to
 
d
0
, each
 
representing the relevant
 
RFR
 
Banking
Day in chronological
 
order in the Cumulation Period;
"
DailyRate
i-LP
" means, for
 
any RFR Banking Day "
i
" in the
 
Cumulation Period,
 
the
 
Daily Rate
for the
 
RFR Banking
 
Day which
 
is the
 
applicable Lookback Period
 
prior to
 
that RFR
 
Banking
Day "
i
";
"
n
i
"
 
means,
 
for
 
any
 
RFR
 
Banking
 
Day
 
"
i
"
 
in
 
the
 
Cumulation
 
Period,
 
the
 
number
 
of calendar
days
 
from, and
 
including, that
 
RFR Banking
 
Day "
i
"
 
up to,
 
but excluding,
 
the following
 
RFR
Banking Day;
"
dcc
" has the meaning given to that term
 
above; and
"
tn
i
" has the meaning given to that term above.
10250237317-v15
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exhibit04x7p167i0
SCHEDULE 12
CUMULATIVE COMPOUNDED RFR RATE
The "
Cumulative Compounded RFR Rate
" for any Interest Period for a
 
Compounded Rate Loan is the
percentage rate per annum (rounded
 
to the same number of decimal places as
 
is specified
 
in the
 
definition
of
 
"
Annualised
 
Cumulative
 
Compounded
 
Daily
 
Rate
"
 
in
 
Schedule
 
11
 
(
Daily
 
Non-Cumulative
Compounded RFR Rate
)) calculated as set out below:
where:
"
d
0
" means the number of RFR Banking Days
 
during the Interest Period;
"
i
"
 
means
 
a
 
series
 
of
 
whole
 
numbers
 
from
 
one
 
to
 
d
0
,
 
each
 
representing
 
the
 
relevant
 
RFR
 
Banking
Day in chronological
 
order during the Interest
 
Period;
"
DailyRate
i-LP
" means
 
for any
 
RFR
 
Banking Day
 
"
i
" during
 
the Interest
 
Period, the
 
Daily Rate
 
for the
 
RFR
Banking Day which
 
is the applicable Lookback
 
Period prior to that RFR Banking
 
Day "
i
";
"
n
i
" means, for any RFR Banking Day "
i
", the number of calendar days from, and
 
including, that RFR
Banking Day "
i
" up to, but excluding, the following RFR Banking
 
Day;
"
dcc
"
 
means
 
360
 
or,
 
in
 
any
 
case
 
where
 
market
 
practice
 
in
 
the
 
Relevant
 
Market
 
is
 
to
 
use
 
a different
number for quoting the number of days in
 
a year, that number;and
"
d
" means the number of calendar days during that
 
Interest Period.
10250237317-v15
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SIGNATURES
[
Intentionally Left Bank
]
10250237317-v15
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70-41048667
 
 
SIGNATURES
THE GUARANTOR
By:
s/ Jani Relander
By
s/ Veronique
 
Dersy
Jani Relander
Veronique
 
Dersy
For and on behalf
 
of
ABB LTD
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
 
 
THE ORIGINAL BORROWERS
By:
s/ Marta Wolodzko
By
s/ Baptise Verbruggen
Marta Wolodzko
Baptise Verbruggen
For and on behalf of
ABB
FINANCE
 
B.V.
By:
s/ John Healy
By
s/ Bridget Smith
John Healy
Bridget Smith
For and on behalf of
ABB TREASURY CENTER
 
(USA), INC.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE FACILITY AGENT
By:
s/ Alasdair Garnham
Name:
Alasdair Garnham
(Authorised Signatory)
For and on behalf of
CITIBANK
 
EUROPE PLC, UK
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE
 
AGENT
By:
s/ Alasdair Garnham
Name:
Alasdair Garnham
(Authorised Signatory)
For and on behalf of
CITIBANK EUROPE PLC,
 
UK BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
AGENT
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
 
For and on behalf of
CITIBANK, N.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
For and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA EUROPE
 
DESIGNATED ACTIVITY
 
COMPANY
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD ARRANGER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ
 
(SWITZERLAND)
 
SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND)
 
LTD.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS
 
BANK USA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For
 
and
 
on
 
behalf
 
of
HSBC BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V.,
 
AMSTERDAM,
 
LANCY/GENEVA BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Jon Abando
Name:
Jon Abando,
Managing Director
(Authorised Signatory)
For and on behalf of
J.P. MORGAN SECURITIES PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER,
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD
 
CHARTERED BANK
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
 
Associate Director
Name
Lukas Gisiger
 
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND
 
AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT
 
BANK AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE MANDATED LEAD
 
ARRANGER
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION,
 
BEIJING, SWISS
 
BRANCH
ZURICH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Akshay Jashnani
Name:
Akshay Jashnani,
Vice President
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A., LONDON
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA
 
EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender
 
to
Borrowers incorporated in the Netherlands and
 
the EU)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA N.A., LONDON BRANCH
 
(as Lender to Borrowers
incorporated in the USA and Switzerland)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ
 
(SWITZERLAND)
 
SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND)
 
LTD.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS
 
BANK USA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For
 
and
 
on
 
behalf
 
of
HSBC BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V.,
 
AMSTERDAM,
 
LANCY/GENEVA BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE BANK, N.A.,
 
LONDON
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER,
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE ORIGINAL
 
LENDER
 
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD
 
CHARTERED BANK
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
 
Associate Director
Name
Lukas Gisiger
 
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND
 
AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT
 
BANK AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE ORIGINAL
 
LENDER
 
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA
 
CONSTRUCTION
 
BANK CORPORATION,
 
BEIJING, SWISS
 
BRANCH
ZURICH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
For and on behalf
 
of
CITIBANK, N.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA
 
EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender
 
to
such
other jurisdictions as may be notified to the Facility
 
Agent from
 
time to time)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Albert Wheeler
Name:
Albert Wheeler
Vice President
(Authorised Signatory)
For and on behalf of
BANK
 
OF
 
AMERICA
 
N.A.
 
(as
 
Lender
 
to
 
Borrowers
 
incorporated in
 
the
 
Netherlands,
USA,
Switzerland and
 
such other
 
jurisdictions as
 
may be
 
notified to
 
the
 
Facility Agent
from
 
time to
time)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR
 
SWINGLINE LENDER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ
 
(SWITZERLAND)
 
SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Doreen Barr
By
s/ Michael Dieffenbacher
Name:
Doreen Barr
Name
Michael Dieffenbacher
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE AG, CAYMAN ISLANDS
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Annie Chung
By
s/ Marko Lukin
Name:
Annie Chung
Director
Name
Marko Lukin
Vice President
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK AG
 
NEW YORK BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS
 
BANK USA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For
 
and
 
on
 
behalf
 
of
HSBC BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V.,
 
AMSTERDAM,
 
LANCY/GENEVA BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE
 
BANK, N.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER,
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD
 
CHARTERED BANK
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Lauren Au
Name:
Lauren Au
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Danielle Calo
By
s/ Christian Odermatt
Name:
Danielle Calo
 
Associate Director
Name
Christian Odermatt
 
Executive Director
(Authorised Signatory)
For and on behalf of
UBS AG, STAMFORD BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT
 
BANK AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE DOLLAR SWINGLINE
 
LENDER
 
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS
 
BRANCH
ZURICH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Akshay Jashnani
Name:
Akshay Jashnani,
Vice President
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A., LONDON
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA
 
EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender
 
to
Borrowers incorporated in the Netherlands and
 
the EU)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA N.A., LONDON BRANCH
 
(as Lender to Borrowers
incorporated in the USA and Switzerland)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel,
 
Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ
 
(SWITZERLAND)
 
SA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND)
 
LTD.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS
 
BANK USA
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For
 
and
 
on
 
behalf
 
of
HSBC BANK PLC
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
 
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V.,
 
AMSTERDAM,
 
LANCY/GENEVA BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
 
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE
 
BANK, N.A., LONDON
 
BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
 
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER,
 
S.A.
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
THE EURO SWINGLINE LENDER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD
 
CHARTERED BANK
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
 
Associate Director
Name
Lukas Gisiger
 
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND
 
AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT
 
BANK AG
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.
 
 
THE EURO SWINGLINE LENDER
 
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS
 
BRANCH
ZURICH
Signature page to the Amendment and
 
Restatement Agreement
 
relating
 
to the Facility Agreement.